BOGERT et al. v. SOUTHERN PAC. CO.

BOGERT et al. v. SOUTHERN PAC. CO. (District Court, E. D. New York. November 6, 1922.) Affidavits <§=»I8 — Not-evidence as to conclusions stated. An affidavit containing conclusions of both law and fact can only be used as evidence in so far as it sets forth definite statements of fact. In Equity. Suit by Henry L.' Bogert and others, as Executors, etc., and others, against the Southern Pacific Company. On motion by defendant to strike from the files affidavit of Arnold C. Hanson. Denied without prejudice. Dittenhoefer, Gerber & James, of New York City (H. Snowden Marshall and Dudley F. Phelps, both of New York City, of counsel), for plaintiffs. Larkin, Rathbone & Perry, of New York City (Gordon M. Buck, of New York City, of counsel), for defendant. [MAJORITY — CHATFIELD, District Judge.] CHATFIELD, District Judge. This affidavit contains conclusions both of fact and of law. The motion to strike it from the record, or in the alternative to allow cross-examination, will be denied as unnecessary. The affidavit in its present form could not be used as proof, except where it sets forth definite allegations Of fact. When these allegations are conclusions of law, from documents or exhibits not before the court, the defendant, of course, would be entitled to the production of the exhibits and a right to cross-examine the witness, inasmuch as it has interposed an objection by making the motion to disregard or to strike out the affidavit. It appears, however, that determination ’of the main application— that is, for an accounting as to these dividends — will dispose of the present motion and protect the defendant in all regards. The present application will therefore be denied without prejudice.