¶1The second section of the statute provides that, in the case made by the defendant’s affidavit, the plaintiff may be called and examined as a witness in the same manner as other witnesses may be called and examined. No doubt this court has power to grant the motion ; but the putting off trials for the reason that material witnesses are absent, is an office which can be more discreetly exercised by the circuit judge. Non constat that the plaintiff will not attend upon due notice that his presence is required. Where the plaintiff is the real party in interest, and a sworn defence is interposed according to the statute, it is no doubt reasonable to require his personal attendance on the usual affidavit of materiality, even though he be *612a non-resident of the state, provided the defendant shall desire it. The circuit judge, however, has the power to postpone the trial, the same as in other cases, and should be appealed to. The motion is denied ; but without costs.
20 Wend. 611
Bosworth v. Perhamus
Decided September 15, 1839
New York Supreme Court · decided 1839-09-15
Practice under usury laws. On an affidavit setting forth that the defence in this case is usury, that the plea is duly verified, that the defendant can not safely proceed to trial without the testimony of the plaintiff who resides in the state of Vermont, and that the cause is noticed for trial at the Monroe circuit, a motion is made to stay proceedings unless the plaintiff shall attend the trial, so that he may be examined as a witness, in pursuance of the provisions of the…
Cited by 3 later decisions — most recently October 1843
3 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1839-09-15
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