Opdyke v. Marble

18 Abb. Pr. 375

• Court: New York Supreme Court
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court.—Ingraham, J.

entertain much doubt as to the propriety of striking out part of an affidavit at any time. Such does not appear to have been the usual practice even in courts of equity, and, before the Code, was never resorted to in courts of law. The decision of the chancellor in Powell a. Kane (5 Paige, 265), -seems, however, to sanction striking out parts of an affidavit as scandalous. The better practice, however, is to suppress the affidavit, and if it has been filed, to take it from the file.

We also think it was erroneous to entertain the motion before the pleading or affidavit is used. The proper course in regard to an affidavit is, when the same is offered to be read, to object to it- as scandalous, and have it suppressed. A party has a right to keep in his own possession an affidavit, however scandalous it may be, if he does not use it in court or put it on the files, and it is objectionable to allow such motions to be made in advance of the affidavits being used.

We, however, think the judge did not err in-holding that parts of this affidavit were scandalous and impertinent, and that it would have been proper for him on that ground to have suppressed the whole affidavit on the hearing of the motion.

Although it was done in this case before the motion was made, the plaintiff has sustained no injury because he was allowed to use part of the affidavit, when the whole of it should have been rejected.

If a party will insert scandalous matter in an affidavit to be used on a motion, he must submit to have it suppressed, and not read on the motion. The rules in regard to pleading are different. There the residue of the pleading remains, after striking out the scandalous matter, to form the issue.

Although the motion should not have been made before the affidavit was used, still the error in that respect has worked no prejudice to the plaintiff’s rights, and we see no reason to reverse the order on that ground.

A part only of the affidavit is suppressed, instead of the whole.

The order is affirmed, but (.without costs.