Cockey v. Hurd
The Superior Court of New York City
Appeal from an order of Special Term, vacating and setting aside an order of reference to take defendant’s affidavit for use on a motion under section 401 of Code,
1Opinion of the Court
By the Court.—Freedman, J.
The sole question argued on this appeal was as to the power of the court to appoint a referee to take the affidavit or deposition of a party for the purposes of a motion.
Prior to the Revised Statutes the courts possessed no power to compel the making of an affidavit to "be read on a non-enumerated motion; and the practice was either to trust to voluntary affidavits or to award a feigned issue (Bacon v. Magee, 7 Cow. 515, and note).
In the revision of the statutes made in 1830, this defect was pointed out "by the revisers, and pursuant to their suggestion a statute was…
2Cases cited3 opinions
- Aspinwall v. Board of Commissioners of the Cty. of DaviessSupreme Court of the United States · 1860
- Bacon v. MageeNew York Supreme Court · 1827
- Moses v. BankerThe Superior Court of New York City · 1867
3Cited by1 opinion
- King v. . LeightonNew York Court of Appeals · 1874