Carr v. Commercial Bank

By the Court, Dixoet, O. J. The practice of receiving the oral testimony of witnesses upon the hearing of a motion, is entirely unknown to us. We are directed to no authority for it, and we know of none. On the other hand, Meyer v. Lent, in the Court of Appeals, 7 Abb. Pr. Reports, 225, is an authority against it. The code does not sanction it, and no such practice exists independently of the code. The law makes no provision for preserving a record of the evidence so taken, or for a review upon a case or bill of exceptions. Upon appeal from an order, the clerk transmits only the order appealed from and the original papers used by each party on the application for the order, or copies in case they are directed. Laws of 1860, ch. 264, sec. 5. If such a practice were allowed, it must result, therefore, in committing the determination of the motion finally to the discretion of the magistrate before whom it is made, which is clearly contrary to the spirit and intention of the laws. We think it cannot be allowed. The oral evidence being out, the case stands upon the affidavit of Durand alone. He deposes that he was not, at the time of service, “ the managing agent,” president, secretary, cashier, treasurer, director or other agent or officer whatsoever of the bank, defendant. On this affidavit, uncontradicted, we must reverse the order and remand the cause, but without prejudice to the right of the plaintiff to produce affidavits in opposition to the motion in case he is so advised. Ordered accordingly.