Smith v. Roome , 44 N.Y.S. 784 ( 1897 )

Fitzsimons, J.

There is nothing in the records submitted to us which shows that Weir was a material witness for the defendant excepting the statement contained in the affidavit of Mr. Thompson, that “ Weir told him that he was present when the agreement set forth in the answer was made.”

It may be true that he did make such statement, and yet it may also be true that such- statement was untrue.

When a party seeks for the postponement of a trial upon the ground of the absence of a material witness, it must appear by competent evidence that such person has knowledge of material facts; his mere saying so, sworn to by some other person, is not sufficient or competent proof to establish the claim that the statement made by the alleged witness is true; it must satisfactorily appear that his statement is true as well as material.

There is no such proof contained in the record submitted to us, and the trial justice was right in his refusal to grant an adjournment.

The defendant also failed to establish by competent proof that his counsel was actually engaged when this inquest was taken; in fact the record shows that they were not actually engaged but apparently hoped to be, so as to be able to secure the adjournment requested.

The order appealed from, therefore, is affirmed, with costs.

McCarthy and Conlan, JJ., concur.

Order affirmed, with costs.