Jordan v. Garrison

6 How. Pr. 6 | N.Y. Sup. Ct. | 1851

Harris, Justice.

It is obvious from the mere statement of the facts set forth in the affidavits read upon this motion, that the cause should be tried in Orleans. The transactions between the parties all occurred there, and there all the witnesses who appear to have any knowledge of those transactions, with the exception of Schoonmaker himself, reside. Although the plaintiff has sworn to a greater number of .witnesses in Ulster than the defendant has named in Orleans, yet I am not satisfied that the plaintiff will, in fact, have occasion to call, upon the trial, any of those named by him, except Schoonmaker. He being himself a party to all the transactions, is, of course, cognizant of all the facts. The plaintiff, accordingly swears that he expects to prove by him all the facts in issue in the suit. On the contrary, although the amount in controversy is not large, I can not see why the defendant will not be obliged to call the greater part, if not all the witnesses named in his affidavit. It is worthy of notice, too, that the plaintiff, although he had the opportunity, has not denied or explained any of the statements in the defendant’s affidavit. Upon the merits, therefore, I am clearly of opinion that the defendant is entitled to prevail upon this motion.

But a point has been made upon the sufficiency of the defendant’s affidavit of merits. The 39th rule of this court requires that the party who makes an affidavit of this description, in addition to what had usually been inserted, shall swear that “ he has fully and fairly stated the case to his counsel.” Here, the affidavit states that the defendant has fully and fairly stated “ the fads of this case ” to his counsel. It is insisted that this departure from the terms of the rule is fatal to the sufficiency of the affidavit.

It is true, that a compliance with the requirements has been enforced with great strictness.. Although, since the adoption of the 48th rule, which has had the effect to change very essentially the character of the affidavits used upon such motions, and since the court has come to be governed more by the nature of the controversy, and the facts to be established by the witnesses, than the number sworn to by the parties, a rigid adherence to a particular form in swearing to merits may not be so important "as before, yet I am not aware that the rule has been, and, perhaps, it ought not to be, relaxed. But I do not think the rule has ever been construed so strictly as to condemn an affidavit made in the terms of that now under notice. The cases relied upon by the plaintiff’s counsel are Cary vs. Livermore (2 How. 170), Bleecker vs. Storms (id. 161), Fitzhugh vs. Truax (1 Hill, 644), Richmond vs. Cowles (2 Hill, 359), Britain vs. Peabody (4 Hill, 61), and reporter’s" note at page 64. But I do not think any of these authorities sustain the objection to the affidavit. In the case first cited,- there was an entire omission of the allegation that the party had fully and fairly stated the case to his counsel.’ In the other case cited from Howard, the party had sworn that he had stated the case in the cause to his counsel, but had omitted to state that the case had been fully and fairly stated. In Fitzhugh vs. Truax, an affidavit that the parly had stated the facts of his case to counsel was held to be insufficient. This decision seems to be in conflict with that in Brownell vs. Marsh (22 Wend. 636), where it was held that an affidavit that the party had fully and fairly stated this case, or his case, to counsel, was a sufficient compliance with the rule. In Richmond vs. Cowles, the defect in the affidavit was, that it only stated that the party had fully and fairly stated his defence to counsel. The same defect was held to be fatal in Rickards vs. Swetzer (3 How. 413). In Brittan vs. Peabody, the defect was in merely swearing that the party believed the advice of his counsel that he had merits. In all these cases there was a substantial departure from the requirement of the rule. But it has never been held that the affidavit must be made in the very words in which the rule is expressed. In Brownell vs. Marsh, Bronson, J., said that “ an affidavit that a party had fully and fairly stated this case, or his case to counsel, fairly implies that he has stated the whole case.” So here, the affidavit that he has fully and fairly stated the facts in this case, fairly .implies that the party has stated all the facts which make the whole case. In Rickards vs. Swetzer, above cited, Mr. Justice Gridley refers to the expressions, “ the case,” and “ the facts of the case,” as importing the same thing, and as equally sufficient. I confess my own discrimination is not sufficiently acute, to enable me to discover any difference in the meaning of the two expressions. To state the case, the party must necessarily state the facts of the case, and in stating the facts of the case, he necessarily states the case.

The motion must, therefore, be granted, with ten dollars costs to the party finally successful in the action.