In the Same Case , 25 N.Y. St. Rep. 113 ( 1889 )

Sedgwick, J.

On the motion below the facts of the case were fully examined. The preponderance of the evidence to support the allegations of fraud in the complaint was not with the plaintiff. Perhaps the plaintiff very thoroughly showed the worthlessness of Duffy as a witness. It was not shown that his testimony could be relied upon to prove the fraud. Even if it were clear that some fraud of some kind had been perpetrated, there was no proof that the particular fraud set up in the complaint had been committed. It is also manifest that upon a trial the method of the examination of Duffy would be objectionable in vital respects.

The complaint also is demurrable.

The order should be affirmed, with ten dollars costs, to abide the event of the action.

All concur.