Ogden v. Payne

5 Cow. 15

• Court: New York Supreme Court
• Decided: October 15, 1825
• Status: Published

Opinion

Curia.

No doubt, according to the case cited from Burrow, the Judge has a discretion in certain cases, whether he will put off the trial upon the common affidavit. This is a very rational rule ; and it is important that it should some times be exercised to prevent delay; but the rule does not attach unless, by counter affidavits, or otherwise, circumstances of-suspicion are made to appear. Nothing of the kind appeared in this instance. It is the common case of a motion to put off the trial, for the absence of a material witness, whose attendance ordinary diligence could not procure. The action was assumpsit. We do not see that suspicion • could attach from the mere fact that the witness was the attorney for the plaintiff. There is nothing unusual in such a circumstance, and the defendants should not be holden to disclose particulars. It might give the opposite party an undue advantage ; and should not be required in the usual case.

Rule : That the inquest be set aside and a new trial granted, on payment of the costs of the Circuit to the time of applying to the Judge to put off the trial; and that the residue of the costs abide the event of the suit.