McNamara v. Nolan

11 Misc. 621, 32 N.Y.S. 922, 66 N.Y. St. Rep. 347

• Court: City of New York Municipal Court
• Decided: March 15, 1895
• Status: Published

Opinion

Newburger, J.

This is an appeal from an order permitting the plaintiff to continue this action in formapemperis.

This action was brought on the 12th day of December, 1894, and on the 14th day of January, 1895, plaintiff applied for the order appealed from on notice to defendant.

The petition of the plaintiff clearly shows that he is not worth $100, and in all other respects complies with section 459 of the Code.

It is contended, however, by the defendant that the action is not meritorious, and he submits in support of Ms contention a number of affidavits.

It has been repeatedly held that issues in an action cannot be tried or disposed of by affidavits.

Upon the face of the pleadings a cause of action is set out, and, as plaintiff has complied with the requirements of the Code, the order appealed from must be affirmed, with costs.

Ehrlich, Ch. J., concurs.

Order affirmed, with costs.