Constantine v. Dunham

9 Wend. 431 | N.Y. Sup. Ct. | 1832

The plaintiffs opposed a motion to change the venue; they outnumbered the witnesses on the part of the defendant, but did not state that without testimony of each and every of them, (i. e. the witnesses,) they could not safely proceed to trial 5 they stated that without the testimony of each, but omitted tQ a(y worc]s anci every of them, they could not safely proceed to trial. It was objected that the affidavit was not, in compliance with the form prescribed by this court in the case reported as Anon. 3 Wendell, 225. The objection was sustained by Mr. Justice Sutherland, who observed, that the rule in respect to these affidavits had been adopted to prevent prevarication, and to avoid discussions as to the form of the papers, and that, in his opinion, it should be rigidly adhered to.

Note.—In a subsequent case in which the same question arose, the Chief Justice, who was presiding at the time, made a similar decision, saying, that in consultation it had been determined to adhere to the decision in 3 Wendell, above cited.