In re Wing , 5 Thomp. & Cook 205 ( 1874 )

Barnard, P. J.

The affidavits read by the counsel for Mrs. Wing, in support of her motion for leave to sue the committee of her husband’s estate, and by the committee in opposition thereto, are irreconcilable. It is not proper to decide upon the merits when there is such conflict upon a motion. Leave should be granted the moving party, to sue the committee to set aside the settlement. If the committee was not an officer of the court, Mrs. Wing could sue without leave. Leave should not be denied when the party applying for such leave shows a case whereon a court of equity would grant relief, if her claim should be established on the trial.

The order appealed from should be so far modified as to permit Mrs. Wing to sue the committee, saving the rights of the mortgagors.

Mrs. Wing is the wife of the lunatic. By a preceding order she was to be permitted access to her husband once a- week. The committee has removed the lunatic out of the State. The order appealed from should also be modified, so far as to require the lunatic to be produced once a week within this State, in some easily accessible place to Mrs. Wing, and that she have free access to him.

Ordered accordingly.