Beall v. Dey
New York Supreme Court
Motion for a commission. It was objected that the affidavit was made by the attorney, and although he stated that the witnesses sought to be examined were material to the defence of the action, he did not add as advised by counsel; and it was also objected that laches were imputable to the defendant, the cause having been at issue since the 23d January last, and three special terms having since elapsed.
1Opinion of the Court
By the Court,
Savage, Ch. J.
The advice of an attorney is the advice of counsel, within the meaning of this rule of practice. Here the affidavit is made by the attorney, and he states that the witnesses are material, which is sufficient. The delay in asking for the commission is not so great as to preclude the defendant from the effect of his motion. Let a commission issue, with stay of proceedings until the same can be executed and returned.
2Cited by5 opinions
- In re GarveyAppellate Division of the Supreme Court of the State of New York · 1898
- Cadmus v. OakleyNew York Surrogate's Court · 1883
- Franklin v. United InsuranceNew York Supreme Court · 1800
- McColl v. Sun Mutual Insurance Co.New York Court of Appeals · 1872
- McGarry v. HartNew York Supreme Court · 1845