Jones v. Russell
New York Supreme Court
Before Parker, Justice.—This was an action commenced under the Code of Procedure. An answer had been put in and the cause was on the calendar for trial. Ho affidavit of merits having been filed, the Plaintiff at the opening of court on the second day of the circuit asked leave to take an inquest in the suit out of its order on the calendar.
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Before Parker, Justice.—This was an action commenced under the Code of Procedure. An answer had been put in and the cause was on the calendar for trial. Ho affidavit of merits having been filed, the Plaintiff at the opening of court on the second day of the circuit asked leave to take an inquest in the suit out of its order on the calendar. J. Hewlahd, for Plaintiff, stated to the court, that there had been some doubts expressed as to the right to take an inquest under the present practice, and asked the court to say what practice would be adopted.
1Opinion of the Court
Parker, Justice.
I understand the code-has not changed the practice as to taking inquests at the circuits. The 31st rule of this court, adopted *325in July, 1847, has not been abrogated by any subsequent legislation. On the contrary, it is declared by § 389 of the code, that where “ the present rules and practice of the courts” are consistent with that act, they shall continue in force, subject to the power over the same of the respective courts.
It is no good reason for dispensing with an affidavit of merits at the circuit, that there was an affidavit verifying the answer. That affidavit only…
2Cited by3 opinions
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- Gauthier v. RusickaNorth Dakota Supreme Court · 1892
- Sargent v. KindredNorth Dakota Supreme Court · 1895