Walker v. Granite Bank
New York Supreme Court
Appeal from an order for the discovery and deposit of the defendant’s books and papers. The action was brought by Thomas G. Walker for money had and received.
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Appeal from an order for the discovery and deposit of the defendant’s books and papers. The action was brought by Thomas G. Walker for money had and received. The complaint set forth that Holbrook, the plaintiff’s assignor, in the year 1854, deposited with the defendants, as security for money borrowed from them, divers bonds and choses in action, which the defendants had disposed of at a price largely exceeding the amount of plaintiff’s indebtedness ; and it asked judgment for such excess, with interest, as for money had and received. A petition was presented on the plaintiff’s behalf,…
1Opinion of the Court
By the Court.—Ingraham, P. J.
We have repeatedly held that application for discovery of books and • papers must specially state what information is wanted, and that the books or papers referred to contain such entries, and this must be stated on positive affirmation, and not on information and belief. It is not enough to dispense with this positive oath that the party should be absent. If so, some other person, who has knowledge of the facts, should swear to the petition. And if there is no one who .can make such affidavit, then the application cannot ordinarily be granted.
Although the…
2Cases cited1 opinion
- Lefferts v. BramptonNew York Court of Common Pleas · 1862
3Cited by1 opinion
- Dickie v. AustinNew York City Court · 1883