Hardin, P. J. Appellant criticises the affidavit of the respondent used upon the motion. The appeal-book does not show that any objection was to the affidavit at the special term. However, we are of the opinion that the criticism is not controlling. We think the affidavit was not fatally defective.
We have had occasion to express our views in Gilbert v. Cart Co., 15 N. Y. Supp. 316, (decided at this term, see opinion of Hardin, P. J.,) upon the subject of the criticism made to the affidavit, as well as upon the rule applicable to motions of this character. After a careful examination of the affidavits used on either side, we are of the opinion that we ought not to interfere with the discretion exercised at the special term. We therefore sustain its order. Order affirmed, with $10 costs and disbursements.
All concur.
Loading…