Hodgskin v. Atlantic & Pacific Railroad
New York Court of Common Pleas
Appeal by the plaintiffs from an order made at Special Term by Barrett, J., setting aside an order appointing a referee to take the affidavits' of two of the defendants to be used upon a motion.
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Appeal by the plaintiffs from an order made at Special Term by Barrett, J., setting aside an order appointing a referee to take the affidavits' of two of the defendants to be used upon a motion. On setting aside the order, the judge delivered the following opinion: Babeett, J.—The question presented is whether subdivision 7 of section 401 of the Code, enacted in 1862, is broad enough to cover the case of a party to an action whose affidavit for the purposes of a motion is required by his adversary. Section 389 specifically provides that no examination of a party at the instance of an adverse…
1Opinion of the Court
*73By the Court.
Daly, F. J.
The motion was properly granted.
1. Because the party was required to make an affidavit prepared for him by the adverse party, which he swears he could not make.
This is of itself sufficient, but I think in addition,
2. That the section 401, subd. 7, providing that a referee may be appointed by order to take the affidavit of “ any person,” to be used upon a motion, who shall have refused to make it, does not apply to a party to the action; for the reason that § 389 declares that no examination of a party shall be allowed on behalf of an adverse party, except as prescribed…
2Cases cited1 opinion
- Clark v. BrooksNew York Court of Common Pleas · 1864
3Cited by2 opinions
- King v. . LeightonNew York Court of Appeals · 1874
- Cockey v. HurdThe Superior Court of New York City · 1873