Ogden v. Payne
New York Supreme Court
This cause, which was assumpsit, being noticed for trial at the last Saratoga Circuit, the defendant’s counsel, on an affidavit of Payne, that H. F. L. the attorney for the plain-v 1 , tiff, was a material witness for him in the cause, as he was advised by counsel and verily believed to be true; that he could not safely proceed to trial without his testimony; that he had endeavored to subpoena him, but he had gone a journey as he was informed, to Philadelphia, and that he…
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This cause, which was assumpsit, being noticed for trial at the last Saratoga Circuit, the defendant’s counsel, on an affidavit of Payne, that H. F. L. the attorney for the plain-v 1 , tiff, was a material witness for him in the cause, as he was advised by counsel and verily believed to be true; that he could not safely proceed to trial without his testimony; that he had endeavored to subpoena him, but he had gone a journey as he was informed, to Philadelphia, and that he could not serve him with a subpoena; moved to put off the trial, on the usual terms; but it appearing that Mr. L. was the…
1Opinion of the Court
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…
2Cited by8 opinions
- Earnshaw v. United StatesSupreme Court of the United States · 1892
- Mott v. MottAppellate Division of the Supreme Court of the State of New York · 1909
- Pulver v. HiserodtNew York Supreme Court · 1847
- Gregg v. HoweThe Superior Court of New York City · 1874
- Hensley v. TuckerSupreme Court of Arkansas · 1850
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