Hooker v. Rogers

6 Cow. 577

• Court: New York Supreme Court
• Decided: February 15, 1827
• Status: Published

Opinion

Curia.

The affidavit was clearly sufficient; this being Ote first time the cause was noticed for trial. It now appears that Thurman, being since dead, cannot be had as a witness; but that is no answer. Had it been known to the defendant in season, he might have supplied his place by other testimony. It does not appear when the other witnesses were subpcenaed ; but the judge did not put his refusal on that ground. If he had done so, the defect in the affidavit, (if it is to be deemed one,) might have been supplied, and the service of the subpoena shown to have been in due season. Substituting an examination of the witnesses on interrogatories, for their personal attendance, might prejudice the defendant’s rights. He was entitled, in strictness, to their personal attendance. We are not aware that this practice of making the want of an offer to examine witnesses on interrogatories the ground of refusal to put off a trial, has ever been allowed, unless perhaps in the case of transient or sea faring witnesses. The usual affidavit is enough on the first notice of trial, unless circumstances of suspicion appear in some way, inducing a belief that the application is intended merely for delay; and so we have held not only in the case cited, but many others. We do not hesitate to say, that had either of us been holding this circuit, we should have deemed it our duty to put off the cause on this affidavit.

Motion granted.