Summary
In Ryan v. Duffy (54 App. Div. 199) the affidavit was made by the attorney only, and the decision turned upon this fact.
Summary of this case from Barnum v. Williams. No. 1Opinion
November Term, 1900.
A.S. Ridley, for the appellant.
Chauncey S. Truax, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, INGRAHAM, McLAUGHLIN and HATCH, JJ.
The plaintiff seeks to excuse his delay in making this application because he did not learn the facts until shortly before the motion was made. But this excuse appears only by the affidavit of his attorney. The plaintiff himself is not sworn. This defect is fatal, and for this reason the denial of the motion was correct and the order must be affirmed, with ten dollars costs and disbursements, without prejudice, however, to the right of the plaintiff, upon payment of the costs of the appeal and of the motion below, to renew upon proper papers.
Order affirmed, with ten dollars costs and disbursements, without prejudice to plaintiff's right, on payment of costs of appeal and motion below, to renew on proper papers.