Opdyke v. Marble
New York Supreme Court
This was an appeal from an order made at special term, by which a part of the plaintiff’s affidavit presented on the motion made by him was struck out as scandalous. The motion is reported Ante, p. 266.
1Opinion of the Court
By the Court.—Ingraham, J.
entertain much doubt as to the propriety of striking out part of an affidavit at any time. Such does not appear to have been the usual practice even in courts of equity, and, before the Code, was never resorted to in courts of law. The decision of the chancellor in Powell a. Kane (5 Paige, 265), -seems, however, to sanction striking out parts of an affidavit as scandalous. The better practice, however, is to suppress the affidavit, and if it has been filed, to take it from the file.
We also think it was erroneous to entertain the motion before the pleading or…
2Cases cited1 opinion
- Powell v. KaneNew York Court of Chancery · 1835
3Cited by3 opinions
- In re AnonymousNew York Surrogate's Court · 1937
- People ex rel. Allen v. MurrayThe Superior Court of the City of New York and Buffalo · 1892
- Armstrong v. RickardAppellate Division of the Supreme Court of the State of New York · 1922