Opinion
July Term, 1896.
Present — Barrett, Rumsey, Patterson and Ingraham, JJ.
Order affirmed, with ten dollars costs and disbursements, without prejudice to another application upon new papers. —
The rule that an application of this kind cannot be granted without an affidavit of merits in proper form is too well settled to be now questioned. The affidavit of merits submitted by the defendants in this action was clearly insufficient, and for that reason the motion below was properly denied. The moving affidavit of Henry L. Clark was also insufficient in that it states that he expects to prove certain things by witnesses, and not that he can prove them. (See McPhail v. Ridout, 83 Hun, 446; Thurfjell v. Witherbee, 70 id. 401.) We do not wish to be understood as passing upon the merits of this application, and this decision is without prejudice to a renewal of the motion at Special Term upon proper affidavits.