Kalbfleisch v. Rider

Full title: THEODORE F. KALBFLEISCH, Respondent, v . JONATHAN T. RIDER, Appellant

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 25, 1907

120 App. Div. 623 (N.Y. App. Div. 1907)

106 N.Y.S. 539

Opinion

June 25, 1907.

William W. Chace, for the appellant.

George S. Raley, for the respondent.

SMITH, P.J.:

The order recites the preliminary objection made to the hearing of the motion that the papers are not sufficient under the rules of this department to authorize the hearing of the motion upon the merits. The motion was thereupon denied, with leave to renew. It is apparent, therefore, that the motion was denied purely upon the ground that the defendant's affidavits were not sufficient to call the plaintiff to the argument of the merits of the motion.

From the briefs it appears that the objection to the affidavits was that there was nothing therein to show what ground the defendant had for his expectation that the witnesses who he claimed were material would swear to the facts upon which they were claimed to be material.

It seems to have been held in this department that a party is not compelled to disclose the ground of his expectation that the witnesses would testify to the material facts claimed. (See Bell v. Whitehead Brothers Co., 5 App. Div. 556; Sinnit v. Cambridge Valley A.S. S.B. Assn., 27 id. 318; Ballston Storage Co. v. Defeo, 67 id. 341.) It is held, however, that a failure to disclose the grounds of the party's expectation may be considered in determining the motion upon the merits. Within this rule the affidavits presented by the defendant seem to be sufficient to call upon the court to consider the merits of the motion. The defendant swears to the facts which "he will prove by the said witnesses on the trial of this cause." This seems to be somewhat stronger than the expression "which he expects to prove." In Ballston Storage Co. ( supra) attention was called to the allegation of the party that he can prove certain facts. This affidavit would seem to be as strong as the affidavits which were held sufficient in the cases cited.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term for hearing upon the merits.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion remitted to Special Term for hearing upon the merits.