¶1The facts contained in the opposing affidavits go to the foundation of the action; but are not proper to be considered on this motion. The court, in this stage of the cause, must be governed by the pleadings. If they show a cause of- action which survives, the representative must be permitted to continue the action. The merits of the action cannot be tried upon affidavits. The motion is, therefore, granted, with leave to Defendant to amend his answer by setting up the same facts.
3 How. Pr. 385
Wing v. Ketcham
Decided December 15, 1848
New York Supreme Court · decided 1848-12-15
<p>An administrator of a deceased Plaintiff, in an action of assumpsit, may have leave to continue the action, under section 101 of the code, if he shows a cause of action which mrvives, notwithstanding it appears by the Defendant’s affidavits that the original Plaintiff in his life time, had assigned the demand before the commencement of the suit. The objection of the Defendant goes to the foundation of the action, and the court cannot try the merits of a cause upon affidavits.</p>
Decided 1848-12-15