Brooklyn Oil Works v. Brown

McCunn, J. (Nisi Prius)

By some courts the adjourn ment of a trial is held to be so much a matter in the discretion of a judge at nisi prius that his denial of the postponement cannot be assigned for error. (Woods agt. Younq, 4 Cranch, 237 ).

In this state a refusal of an adjournment is not the subject of exception, but may be reviewed on motion for a new trial. (People agt. Vermilyea, 7 Cowen., 108; People agt. Superior Court of City of N. Y., 10 Wend., 299 ; Howard agt. Freeman, 3 Abb. N. S., 292).

For while we held the exception in denial of an adournment to be within the discretion of the judge at trial, still we admit it was not an arbritrary discretion, but a discretion controlled and regulated by fixed principles of *452 practice. These rules are of incalculable importance in the administration of justice, and since they have been permitted of late to fall into disuse, it cannot be amiss to recall them to the attention of the profession :

First. A motion for adjournment must be based upon an affidavit, and will not be entertained on a statement ore tenus (Smith agt. Banker, 3 Darby, 280).

Second. The affidavit must exhibit these essential conditions; an affidavit of merits; the materiality of the absent evidence; due diligence in the endeavor to procure the attendance of the witness, and an assurance of his probable attendance at the time proposed for the adjournment.'1 (Phil. Fvi. Cowen & Hills, Notes, 365-8).

The affidavit should properly be made by the party, not by the attorney. (Price agt. Warren, Vin. Abr. Trial T., 3 Pl., 11 note; Tidd's Pr., 708). If after notice of trial the party had an opportunity to supoena the witness, or to take his testimony de bene esse and neglected these precautions, he cannot claim to have exercised due diligence. (Pennington agt. Scott, 2 Dall., 95 ). The defendant' must swear positively that the witness is material, not merely to a belief. (Gray agt. Hulton, Burn., 437, 3 Fd). The practice now is to swear that the defendant is advised and believes the witness to be material. (M’Kay agt. Marine Ins. Co., 2 Caines, 384 ; Chambers agt Handley, J. J. Mar., 98; People agt. Vermilyea, 7 Cow., 369 ). These are the requisites of the common affidavit, and are sufficient, if not defeated by counter affidavits, to entitle the party to an adjournment. (The King agt. McGee, 1 O’Connell’s Speeches, by his son, 223). But if there has already been a postponement of the trial at the instance of the party soliciting the present adjournment in any other circumstances raising a supposition that his application is merely for delay, then he must present a special affidavit. At this juncture the discretion of the court is larger and more liberal than under other circumstances. (Loftt. 769).

*453 The special affidavit must exhibit, by a statement of facts, the materiality of the witness. (The King agt. Innes, 8 East, 31 ; Lord agt. Cunke, 1 W. Bl., 433; People agt. Vermilyea, supra). If the court can see that the evidence proposed to be given by the absent witness is immaterial, the trial will not be adjourned. (Rex agt. Chevalier d'eon, 3 Burr, 1513 ; Smith’s case, 3 Wheel. Cr. Cas., 172 ). So a full admission of the facts proposed to be proved by the absent witness will defeat an application for postponement. (Brill agt. Linch, 14 Johns., 341 ; Cowen, 388-400). One of the most essential inquiries is, did the witness go away before notice of trial. (Elliott agt. Crest, 2 Brod. & R. R., 205). For if he did not, then there must be some other or positive cause for postponing. In this case the affidavit is faulty in all its parts, and does not comply with any of the requirements. I shall, therefore, order the trial to proceed, unless defendants stipulate to allow an inquest on the next adjourned day, if they are not ready to proceed ; if they so stipulate, then the cause stands adjourned until Monday next.

The parties stipulated, and case was adjourned.