Legal Opinion

Brisban v. Hoyt

New York Supreme Court

Decided May 15, 1828Published

Motion for a commission to examine witnesses. The affidavit on which the motion was founded did not state that the defendant had a good and substantial defence on the merits, as advised by counsel. It detailed the probable testimony of the witness, but not in a sufficiently explicit manner to enable the court to judge that it would amount to a good defence.

1Opinion of the Court

By the Court,

Savage, C. J.

The motion is denied, with costs. Where the effect of a rule granting a commission is to stay the proceedings, the affidavit must state the party has a defence on the merits. (2 Johns. Cas. 285.)

2Cases cited1 opinion

  1. Franklin v. United InsuranceNew York Supreme Court · 1801