Burnell v. Coles
Appellate Terms of the Supreme Court of New York
Appeal by the plaintiff from an order of the General Term of. the City Court of New York, affirming an order for an open commission granted at the instance of the defendant. The opinion states the material facts.
1Opinion of the CourtGiegerich, J.
While the order before us is, in its nature, discretionary, we have held, upon' the former appeal, that it may be examined by this court for the purpose of determining whether or not grounds for the exercise of discretion, in the first instance, were afforded by the moving papers, since so far a question of law would be presented (Burnell v. Coles, 23 Misc. Rep. 615), and our reversal of the first order was placed upon the failure of the affidavits to disclose the. fact that the witnesses sought to be examined were not within the state, and that them testimony was material to the defense in…
2Cases cited2 opinions
- Burnell v. ColesAppellate Terms of the Supreme Court of New York · 1898
- Weiss v. MorrellNew York Court of Common Pleas · 1894