Cockey v. Hurd
The Superior Court of New York City
. Appeal from an order. After issue joined in this action, plaintiff obtained an order under section 491 of the Code of Procedure, subd. 7, appointing a referee to take the affidavit or deposition of the defendant to be used in opposition to a motion by defendant for leave to serve an amended or supplemental answer.
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. Appeal from an order. After issue joined in this action, plaintiff obtained an order under section 491 of the Code of Procedure, subd. 7, appointing a referee to take the affidavit or deposition of the defendant to be used in opposition to a motion by defendant for leave to serve an amended or supplemental answer. The substance of the affidavits upon which the application was made are stated in the opinion of Barbour, Ch. J. On an order to show cause, the defendant had the order vacated on the ground that the statute does not apply to parties, but only to third persons whose testimony may…
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 óf 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 bn 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 cited5 opinions
- Bacon v. MageeNew York Supreme Court · 1827
- Winston v. EnglishThe Superior Court of New York City · 1873
- Hodgskin v. Atlantic & Pacific RailroadNew York Court of Common Pleas · 1869
- Huelin v. RidnerNew York Supreme Court · 1858
- Palmer v. AdamsThe Superior Court of New York City · 1862