8 N.Y.S. 92 | N.Y. Sup. Ct. | 1889
Upon the merits the order appealed from appears to be right. The moving affidavit does not show how the affiant was able to state that the several persons named as necessary witnesses could testify as set forth in the affidavit, and the appellant insists that under Kelly v. Maltham, 2 Wkly. Dig. 173, this omission is a fatal defect. The rule intimated in the case cited is more stringent than we usually exact. Carpenter v. Insurance Co., 31 Hun, 78. The requisite formalities as specified in the case last cited, including an affidavit of merits, being observed, the main test of such motions is, what does sound discretion require? Where this is not obvious, a critical inspection of the affidavits may test the good faith in which they are made. A full report of Kelly v. Maltham would probably show that the affidavit'criticised was not free from suspicion. Order affirmed, with costs.
Fish, J., concurs. Learned, P. J., takes no part.