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2 How. Pr. 7

Mesick v. Smith

New York Supreme Court

Decided December 15, 1845

New York Supreme Court · decided 1845-12-15

Motion by defendants for a reference. The defendants moved for a reference in this cause, upon an affidavit in the usual form made by defendants’ attorney, without any excuse being given for its not being made by the defendants, or one of them.

Decided 1845-12-15

¶1The plaintiff’s counsel insisted that the affidavit should have been made by the party and not the attorney, unless a sufficient excuse was given why the party did not make it.

Jewett, Justice.

¶2Sustained the objection, and decided that the affidavit was not sufficient: for that reason it did not come within the rule. Motion denied with costs, without prejudice.

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