Union Trust Co. v. Driggs

Appellate Division of the Supreme Court of the State of New York

Decided July 1, 1900

Appellate Division of the Supreme Court of the State of New York · decided 1900-07-01

Appeal by the defendants, Annie Spencer Driggs and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1900, directing the said •defendants to deliver to the plaintiff’s attorneys a copy of the will •of their mother, Anna A. Driggs, certified and sworn to by a notary public or other official duly authorized by the laws of the State in which said…

Decided 1900-07-01

Van Brunt, P. J. (dissenting):

¶1I dissent. There is not' a particle of evidence before the court that the defendants or any of them ever had the paper in their possession. The averments in the affidavit are mere hearsay, two or *408three degrees removed; and in the case of one of the parties, the only evidence is her affidavit that she has not got and never had the paper. It is most extraordinary, under such circumstances, to compel parties to produce what they have not got, and to imprison them for not so doing.

¶2O’Brien, J., concurred.

¶3Order affirmed, with ten dollars costs and disbursements.