N. Y. SUPERIOR COURT.

#### The Brooklyn Oil Works agt. Daniel Brown and others.

A refusal of an *adjournment,*is not the subject of exception, but may be reviewed on motion for a new trial.

A motion for adjournment must be based upon an *affidavit,*and will not be entertained on a statement *ore tenus.*

The affidavit must contain 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.

When a special *affidavit*necessary, and the facts necessary to be stated therein; also what detailed facts necessary to be stated in a general affidavit.

This was a motion to postpone on account of an absent witness.

R. A. Pryor, *for plaintiff.*

Mr. Sullivan, *for defendant.*

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 *452practice. 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).

*453The *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.