Swain v. Pettengill

New York Supreme Court

Swain v. Pettengill

12 N.Y.S. 57, 34 N.Y. St. Rep. 643, 58 Hun 607, 1890 N.Y. Misc. LEXIS 3551

DecidedDecember 10, 1890

StatusPublished

This text of 12 N.Y.S. 57 (Swain v. Pettengill) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swain v. Pettengill, 12 N.Y.S. 57, 34 N.Y. St. Rep. 643, 58 Hun 607, 1890 N.Y. Misc. LEXIS 3551 (N.Y. Super. Ct. 1890).

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Opinion

Barnard, P. J.

The affidavit upon which the order to examine the defendant Pettengill and the witness Dwinelle was made is defective and insufficient. [58]*58Neither the nature of the action nor the substance of the judgment demanded is stated in the plaintiff’s affidavit. The only statement is to the effect that the plaintiff is a stockholder in the Metropolitan Transit Company; that Pet-ten gill is its president, and has wrongfully issued stock which he has converted to his own use. A summons but no complaint has been served. Neither the cause of action nor the judgment to be demanded can be even in-ferred from this statement. The affidavit, therefore, fails to comply with section 872, subd. 2. of the Code of Civil Procedure. The order should therefore be reversed, with costs and disbursements, and the motion granted vacating order, with costs.

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Barnard, P. J.

The affidavit upon which the order to examine the defendant Pettengill and the witness Dwinelle was made is defective and insufficient. [58]*58Neither the nature of the action nor the substance of the judgment demanded is stated in the plaintiff’s affidavit. The only statement is to the effect that the plaintiff is a stockholder in the Metropolitan Transit Company; that Pet-ten gill is its president, and has wrongfully issued stock which he has converted to his own use. A summons but no complaint has been served. Neither the cause of action nor the judgment to be demanded can be even in-ferred from this statement. The affidavit, therefore, fails to comply with section 872, subd. 2. of the Code of Civil Procedure. The order should therefore be reversed, with costs and disbursements, and the motion granted vacating order, with costs.

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Bluebook (online)

12 N.Y.S. 57, 34 N.Y. St. Rep. 643, 58 Hun 607, 1890 N.Y. Misc. LEXIS 3551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swain-v-pettengill-nysupct-1890.