Southart v. Dwight , 2 Sandf. 672 ( 1849 )

Sandford, J., (after advising, with two of his associates,)

held that the affidavit of the defendant did not make a sufficient answer to the application of the plaintiff. A party, to excuse himself from making a discovery of any papers alleged on oath by the adverse party, to be in his possession, must make an affidavit in the terms prescribed by the revised statutes, and swear positively that the papers are not in his possession, or under his control. He must make such an examination as to enable him to do this ; or state facts with his denial when expressed as it is here, which will show that such denial is equivalent to the positive oath required by the statute.