52 N.Y.S. 857 | N.Y. App. Div. | 1898
This motion might well have been denied upon the insufficiency of the moving papers. There is no evidence of the amount of property, or the income of the defendant, except the statements contained in the affidavit of the plaintiff. Those statements are contradicted and explained by the affidavit of the defendant, so that, even if the affidavit of the plaintiff were to be considered, there was not enough evidence to enable the court in deciding the motion to fix the amount of alimony. But the affidavit of the plaintiff was not properly certified to permit it to be read. Section 844 of the Code prescribes that an affidavit which may be received in an action in this State may be taken without the State before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in the State. The words “ the State,” as used in that section, refer, in each instance,
Van Brunt, P. J., Patterson and Ingraham, JJ., concurred.
Order modified so as to direct that the denial of the motion shall be without prejudice to its renewal upon new papers, and as so modified affirmed, without costs.