Barber v. Cromwell
New York Supreme Court
Motion for reference by plaintiffs. The moving affidavit is in the usual form under the old practice, but omits to state whether the investigation on the. trial will -require the decision of difficult questions of law ; for this reason the defendants’ counsel objects, preliminarily, to the sufficiency of the affidavit. (Citing § 271 of the Code, and 1 Whittaker’s N. Y. Prac. 564.)
1Opinion of the Court
Hubbard, Justice.
The objection I think untenable! In this respect, the Code has not changed the former practice. The clause in \ 271 of the Code, “ except when the investigation will require the decision of difficult questions of law,” is *352but an enactment, in statutory form, of the well settled rule adopted by the courts under the Revised Statutes. (Graham’s Prac. 2d ed. 572.)
The section does not assume to prescribe upon whom rests the' duty or burden of showing that the particular case is, or is not, within the exception; whether upon" the party moving, or the party opposing. It does not, in…
2Cases cited1 opinion
- Shaw v. AyrsNew York Supreme Court · 1825
3Cited by1 opinion
- Cassidy v. McFarlandNew York Court of Common Pleas · 1892