Geib v. Icard
New York Supreme Court
WOODWARD, for the defendant, moved to set aside the in? quest taken in this cause, at the sittings, in the city of Neiv-York. rea^ an affidavit stating that previous to the sittings, a copy of an affidavit of merits, and notice of its being filed with the clerk of the sittings, were duly served on the plaintiff’s attorney, w^° had noticed the cause for trial as an inquest.
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WOODWARD, for the defendant, moved to set aside the in? quest taken in this cause, at the sittings, in the city of Neiv-York. rea^ an affidavit stating that previous to the sittings, a copy of an affidavit of merits, and notice of its being filed with the clerk of the sittings, were duly served on the plaintiff’s attorney, w^° had noticed the cause for trial as an inquest. (See Rule of November term, 1808.) J It appeared that the capias ad respondendum in the case was issued the 4th January, and returnable the 16th January, 1813, and that the declaration was filed the 23d February, and…
1Per curiam
The affidavit of a defence on the merits cannot be made before the plaintiff has declared; and the reason assigned in this case for making it is insufficient, as, in the absence of the defendant, it may be made by his attorney or counsel. (Phillips v. Blagge, 3 Johns. Rep. 141.) It appears also that the defendant’s attorney was apprised, by the plaintiff’s attorney, that he considered the affidavit as insufficient on this account. The motion is denied-.
Motion denied.
2Cited by4 opinions
- Davis v. SolomonAppellate Terms of the Supreme Court of New York · 1899
- Roosevelt v. DaleNew York Supreme Court · 1824
- The HarrietDistrict Court, S.D. New York · 1845
- Young v. ScottNew York Supreme Court · 1842