Wing v. Ketcham

New York Supreme Court

Wing v. Ketcham

3 How. Pr. 385

DecidedDecember 15, 1848

StatusPublished

This text of 3 How. Pr. 385 (Wing v. Ketcham) 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

Wing v. Ketcham, 3 How. Pr. 385 (N.Y. Super. Ct. 1848).

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Opinion

Barculo, Justice.

The facts contained in the opposing affidavits go to the foundation of the action; but are not proper to be considered on this motion. The court, in this stage of the cause, must be governed by the pleadings. If they show a cause of- action which survives, the representative must be permitted to continue the action. The merits of the action cannot be tried upon affidavits. The motion is, therefore, granted, with leave to Defendant to amend his answer by setting up the same facts.

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Barculo, Justice.

The facts contained in the opposing affidavits go to the foundation of the action; but are not proper to be considered on this motion. The court, in this stage of the cause, must be governed by the pleadings. If they show a cause of- action which survives, the representative must be permitted to continue the action. The merits of the action cannot be tried upon affidavits. The motion is, therefore, granted, with leave to Defendant to amend his answer by setting up the same facts.

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Bluebook (online)

3 How. Pr. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wing-v-ketcham-nysupct-1848.