The opinion
By the Court, Cowen, J.
The affidavit of merits is insufficient. It is, that the defendant has stated the facts of his case ; whereas it should be, that he has stated the case, fee.
Motion denied. (a)
See Rule 61st, ed. of 1837; and also Rule 1st of May T. 1840, ( 22 Wend. 644 .) The affidavit may be, that the party has stated this case, or his case; but not that he has stated his defence, &c. (Brownell v. Marsh, 22 Wend. 636 .) Nor will it do to qualify the phraseology, by adding) “ so far as the facts have come to his knowledge,” or in any other manner, unless a sufficient excuse therefor be ex pressly shown. (Brown v. Tousey, 19 Wend. 616 .)