State Bank v. Gill

30 N.Y. Sup. Ct. 406

Opinion

Smith, J.:

There is no sufficient affidavit of merits in this case. The affidavit of the defendant, Andrew W. Gill, alleges that each of the defendants “ bas a good and valid defense to tbe whole of the plaintiff’s claimjas set forth in said complaint upon the merits thereof,” etc. The affidavit made by Mr. Sewell, purporting to be in behalf of the defendant, Mrs. Gill, she being absent from the State, alleges that she has a “ valid defense upon the merits to the whole of plaintiff’s claim herein,” etc. Neither of these is a compliance with what the rule and practice require, to wit: that the defendants have “ a good and substantial defense on the merits in this cause,” etc (See form of affidavit of merits in note to Brittan v. Peabody, 4 Hill, 66.) In Meech v. Calkins (4 Hill, 534), which was an action of debt on bond, an affidavit that the defendant has “ a good and substantial defense to the bond,” etc., was held defective in not stating a defense on the merits. In Durant v. Cook (1 How. Pr., 45) the affidavit stated that the defendants have “ a good and substantial defense upon the merits in the above entitled cause to the promissory note on which the action is brought,” etc. Held, bad. So in Howe v. Hasbrouck (1 How. Pr., 67), the averment being that the defendant has “ a good, valid and sufficient defense upon the merits in the above entitled cause to the plaintiff ’’s declaration filed in this suit,” etc. Also in Mason v. Moore (2 How. Pr., 70), where the affidavit stated that the defendants have “ a good and substantial defense upon the merits to the plaintiff’s demand on the promissory note on which this action is brought,” etc. Pule 24 applies only to the case of an affidavit made to obtain an order extending a defendant’s time to answer or demur; and the last clause of section 980 of the Code of Civil Procedure, makes a verified answer equivalent to an affidavit only for the purpose of preventing an inquest. Each of the affidavits in this case is also defective in not stating that the counsel, whose advice is sworn to, is the counsel of the defendant in this action. The affidavit made in behalf of Mrs. Gill is further defective in the several particulars specified by the plaintiff’s counsel in subdivisions (c), (d) and (f) of his third point, which need not be referred to more particularly.

The order is affirmed with costs.

Talcott, P. J., and HaediN, J., concurred.

Order denying motion to change place of trial affirmed, with ten dollars costs and disbursements.