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Bird v. Moore

3 Hill & Den. 447 Court N.Y. Sup. Ct. English

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p. 447
Bird and others vs. Moore and others.

Headnote

The affidavit on which to move for judgment as in case of nonsuit where the cause has not been noticed for trial, should always be made by the attorney, or a reason given why it is made by another. Per Bronson, J.
But where the cause has been placed on the calendar for trial, the affidavit may be made by the counsel who attended the circuit on behalf of the defendant.
The case of Ames v. Merriman, ( 9 Wend. 498 ,) commented on and explained.
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.
D. Wright, for the motion.
W. Hall, for the plaintiffs,
said, the affidavit should have been made by the attorney for the defendants.

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 affidavit should always be made by the attorney, or a reason should be

p. 448
assigned why it is made by another. But where the cause is placed upon the calendar for .trial, the affidavit may be made by the counsel who attended on behalf of the defendant. The fact of its being on the calendar is sufficient presumptive evidence that the cause is at issue, that it has been noticed for trial, and that the venue is in the county where the plaintiff proposed to try. As to every thing else essential to the motion, the counsel must generally be as well prepared as the attorney, and many times better prepared than he, to make the necessary affidavit.

Motion granted.

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