Legal Opinion

Bird v. Moore

New York Supreme Court

Decided July 15, 1842Published

Motion for judgment as in case of nonsuit on an affidavit stating, that the cause was upon the calendar for trial at the last New-York circuit; that after a jury had been empannelled and the trial had commenced, the plaintiffs, on account of an unexpected difficulty in their proofs, were allowed to withdraw a juror, and the cause was not tried, though younger issues were tried.

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Motion for judgment as in case of nonsuit on an affidavit stating, that the cause was upon the calendar for trial at the last New-York circuit; that after a jury had been empannelled and the trial had commenced, the plaintiffs, on account of an unexpected difficulty in their proofs, were allowed to withdraw a juror, and the cause was not tried, though younger issues were tried. The affidavit was made by the counsel who attended the circuit on behalf of the defendants, their attorney residing in the country.

1Opinion of the Court

By the Court, Bronson, J.

An affidavit by the attorney’s clerk, without assigning any reason why the attorney did not himself make the affidavit, has been held insufficient. (Jackson v. Woodworth, 3 Caines, 136 ; Chase v. Edwards, 2 Wend. 283.) But an affidavit by the defendant has been held good. (Ames v. Merriman, 9 Wend. 498.) It probably appeared in that case that the cause was noticed for trial and that the defendant attended the circuit without his attorney, and so was better able than the attorney to prove what took place at the circuit. Where the cause is not noticed for trial, the…

2Cases cited2 opinions

  1. Chase v. Edwards & BullNew York Supreme Court · 1829
  2. Ames v. MerrimanNew York Supreme Court · 1833

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