Bosworth v. Perhamus

20 Wend. 611

• Court: New York Supreme Court
• Decided: September 15, 1839
• Status: Published

Opinion

By the Court, Cowen, J.

The second section of the statute provides that, in the case made by the defendant’s affidavit, the plaintiff may be called and examined as a witness in the same manner as other witnesses may be called and examined. No doubt this court has power to grant the motion ; but the putting off trials for the reason that material witnesses are absent, is an office which can be more discreetly exercised by the circuit judge. Non constat that the plaintiff will not attend upon due notice that his presence is required. Where the plaintiff is the real party in interest, and a sworn defence is interposed according to the statute, it is no doubt reasonable to require his personal attendance on the usual affidavit of materiality, even though he be a non-resident of the state, provided the defendant shall desire it. The circuit judge, however, has the power to postpone the trial, the same as in other cases, and should be appealed to. The motion is denied ; but without costs.