Hepburn v. Archer
New York Supreme Court
Appeal from an. order made at Special Term, requiring the plaintiff to deposit with the court certain contracts and statements of account. This action was brought by the plaintiff as assignee of Lucy D. Fisk, as executrix, etc., of James Fisk, Jr., deceased, to recover moneys alleged to be owing by the defendant under a contract, alleged to have been made by him with the testator in his life-time.
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Appeal from an. order made at Special Term, requiring the plaintiff to deposit with the court certain contracts and statements of account. This action was brought by the plaintiff as assignee of Lucy D. Fisk, as executrix, etc., of James Fisk, Jr., deceased, to recover moneys alleged to be owing by the defendant under a contract, alleged to have been made by him with the testator in his life-time. Under this contract it was claimed that the defendant was to pay to the said Fisk a* certain proportion of the profits which might be made under a certain' other contract existing between the…
1Opinion of the Court
Barrett, J. :
There may be cases where a verified denial in the precise language of the statute would be sufficient; but such an affidavit will hardly do where the plaintiff sues upon a written instrument which should naturally be in his possession. For instance : If A sues B on a promissory note, it will not answer for A, when called upon in a proper case, to say, without explanation, that the instrument is not in his possession or under his control. Here the plaintiff claims, as the assignee of certain contracts which the defendant believes to be forgeries. Their deposit may properly be…
2Cases cited1 opinion
- Jackson ex dem. Titus v. JonesNew York Supreme Court · 1824