Smith v. Aylesworth
New York Supreme Court
Appeal from an order of special term denying motion to set aside an inquest taken at the Monroe circuit, in January, 1862. The circuit commenced on Monday the 6th of January. On that day the defendant made the usual affidavit of merits, which was filed on the following day (Tuesday) at 8o’clock in the forenoon, and before the opening of the court, on that day.
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Appeal from an order of special term denying motion to set aside an inquest taken at the Monroe circuit, in January, 1862. The circuit commenced on Monday the 6th of January. On that day the defendant made the usual affidavit of merits, which was filed on the following day (Tuesday) at 8o’clock in the forenoon, and before the opening of the court, on that day. The affidavit of one of the attorneys for the defendant states, among other things, the following facts: That the cause stood No. 212 on the circuit calendar ; that he, the attorney, after filing the defendant’s afínda vit of merits…
1Opinion of the Court
By the court, Welles, Justice.
The only question presented on this appeal is, whether the affidavit of merits was filed and a copy served in time to prevent the inquest. The affidavits read on the motion establish, as I think, that both were done before the opening of the court, on' the second day of the circuit. The copy affidavit and notice of filing, &c., were properly served on the clerk in the office of the plaintiff’s attorney, he not being in his office at the time. No unfairness or laches are attributable to any one, unless it was laches on the part of the defendant’s attorney in not…
2Cited by1 opinion
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