Franklin v. United Insurance
New York Supreme Court
An application, in behalf of the defendants, was made, in October term, which was within the time for making the motion for a commission to Porto Bello, in South America ; but as the affidavit did not mention the names of the witnesses to be examined, the motion was denied.
1Opinion of the Court
*Per Curiam.
Though the defendants account for their delay, in making this application, yet they do not state with certainty that there is a substantial defence ; or that they are informed, and believe any to exist. Where a party asks for delay, he ought to state positively that he has a defence on the merits ; and that he seeks only the requisite proof. The defendants ask for a commission, for the double purpose of ascertaining or discovering whether a defence really exists, and if it does, to obtain the requisite proof to support it. The affidavit does not state probable grounds to induce a…
2Cited by2 opinions
- Franklin v. United InsuranceNew York Supreme Court · 1800
- Brisban v. HoytNew York Supreme Court · 1828