Deas v. Smith
New York Supreme Court
Issue had been joined in this cause, in 1800, and two commissions had been sued out; one had been returned, but a long time having elapsed, the defendant gave notice, for the last term, that he would then move for judgment as in case of nonsuit.
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Issue had been joined in this cause, in 1800, and two commissions had been sued out; one had been returned, but a long time having elapsed, the defendant gave notice, for the last term, that he would then move for judgment as in case of nonsuit. On the motion being brought [*172] on, the plaintiff *stipulated to try, at the next sittings, or circuit court, reserving to himself the right of applying to the court for a renewal of the stipulation, in case the other commission, then pending, should not be returned.
1Opinion of the Court
Per Guriam.
The application is for judgment as in case of nonsuit; this is opposed by a deposition read by the plaintiff, disclosing facts, to rebut which, the defendant offers a counter affidavit :(a) a question is made whether it can be received. On examining into the point, the court *235finds the practice to be settled against its reception. (Ante, 13.) It is expressly decided, in Grove ads. Campbell, Col Cas. 114, “that a party can never -support his motion by any affidavits but those on which he originally grounds it.”
The motion must, therefore, depend on the first affidavits. From that by…
Also in this document: Per curiam.
2Cases cited2 opinions
- Hooker v. RogersNew York Supreme Court · 1827
- Wilcox v. HowlandNew York Supreme Court · 1827