Powell v. Kane

2 Edw. Ch. 450, 1835 N.Y. LEXIS 261, 1835 N.Y. Misc. LEXIS 10

Opinion

The Vice-Chancellor

decided, there was no occasion, where the court itself ordered a master to report upon scandal or impertinence in an affidavit, which had been produced in court and whereby the latter was thus in full view of its contents, to require the party moving the reference to go into the master’s office with forma! exceptions ; and that an order to refer was enough.

His honor also, in scrutinizing the deposition, said that affidavits should contain matters of fact only and not matters of argument: for the latter would amount to impertinence.

The Vice-Chancellor supported the report of the master; and, determined, inasmuch as the improper affidavit was made by the solicitor himself in relation to a matter wherein his client had not interfered, that he alone must pay the costs of the reference and of the hearing upon the exceptions. There was no alternative or escape from this course : for the opposite party were entitled to be paid and the client on the other side ought not to pay for this act of his solicitor.

Order accordingly.