Hughes v. Heath , 9 Abb. Pr. 275 ( 1870 )

Cardozo, J.

In thecase in 16 Abb. Pr., the common pleas did no more than say that when, the proposed supplemental answer was so plainly sham that it would be stricken out on motion, leave to plead it would not be granted. But an answer is never stricken out on motion if upon the affidavits presented there is anything to try. If the falsity be obvious, then the plea will be stricken out; but otherwise, even if the affidavits strongly preponderate against the truth of the pleadings, the court leaves the fact to be tried in the usual and regular method, and will not determine the matter by the unsatisfactory method of a trial upon ex-parte affidavits.

These remarks dispose of the present application, which must accordingly be granted upon payment of costs of the motion.

I may add that if this unnatural litigation must proceed, no impediments ought to be placed in the way of ascertaining the very truth of the matter, on whichever of these unfortunate litigants the blow may rest; but may I not venture to suggest that affection, irrespective of the question of right, ought to control this case upon both sides, and it, and not a court, should settle the difference between these parties.