
    The John T. Noye Manufacturing Co., Respondent, v. George II. Raymond, Appellant.
    (Superior Court of Buffalo—General Term,
    May, 1894.)
    An affidavit to procure an adjournment on the ground of the absence of a material witness must state the facts concerning the efforts made by the party to procure the attendance of such witness.
    The law implies a promise to pay for goods delivered on request, and the presumption is that they were to be paid for on delivery.
    A defect in the complaint in an action brought by or against a corporation in omitting to state whether it is a domestic or foreign corporation, and if the latter the state, country or government under whose laws it was created, is waived by answering upon the merits.
    This is an appeal by the defendant from a judgment of the Municipal Court of Buffalo, in favor of the plaintiff and against him, for the sum of $516.61.
    
      Mr. Handing, for appellant.
    
      Mr. Orangle, for respondent.
   White, J.

This action is brought to recover the balance of an account alleged to he due from the defendant for services rendered and goods delivered at his request. The answer contains a general denial, a set-off against the claim arising out of a breach of warranty of the goods sold and a plea of payment. Upon the joinder of issue the case was adjourned for several days by the court of its own motion. On the adjourned d'ay the defendant asked for a further adjournment, and in support of his motion read the affidavit of the defendant, which is attached to and made a part of the return herein. The com! refused to grant the adjournment asked for, and the defendant claims that such refusal was erroneous and requires a reversal of the judgment appealed from. It was incumbent upon the defendant, in order to secure the adjournment requested, as a matter of right, to prove by his own oath or otherwise to the satisfaction of the court that a material and necessary witness was not present in court; that he could not safely proceed to trial without the benefit, of the testimony of that witness, and that he had used due diligence to obtain the testimony or the attendance of the witness. The affidavit used by the defendant for that purpose states that a party by the name of Granver is a necessary and material witness for the defendant, and that he cannot safely proceed to the trial of the action without him; that Granver was reported by one Martin Johnson to have gone uji the lakes at some time before this action was commenced, and was expected to return in four or five weeks; that he expected to prove by Granver that the-machinery sold by the plaintiff to the defendant, to recover the price of which the action is brought, was not as warranted to be by the plaintiff, and damages sustained by the defendant by reason of that breach of warranty. The fact was pleaded, and, therefore, the testimony of Granver, as the defendant claimed it would be, was material, and by complying with the law and rules of practice in that regard the defendant was certainly entitled to the benefit of the evidence' on the trial. The affidavit seems to comply with the requirements of the statute, section 2975 of the Code of Civil Procedure, unless it fails to show that degree of diligence to secure the attendance of the absent witness or his testimony which the law exacts. There is no statement of facts in the affidavit upon which the court could exercise its judgment as to whether due diligence had been used by the defendant or not. The defendant says he endeavored to procure the attendance of the witness, but he fails to say what he did in that respect. He should have stated the facts concerning his efforts. It was for the court to say on those facts whether he had done what the law required of him. No statement is made as to the knowledge or means of knowledge possessed by Johnson concerning the intentions of Granver, nor is it stated where Granver or Johnson then or at any time lived, nor whether Granver went from or intended to return to the city of Buffalo or the state of New York. Granver might have lived in Canada and have gone up the lakes with the intention to return to his home there in perfect harmony with the statements in the affidavit. The ruling of the Municipal Court is not shown to have been an abuse of its discretion, but was justified by the facts as they were presented to it.

The defendant next claims that the evidence given upon the trial does not warrant the inference in law that the plaintiff sold and delivered goods to or rendered services for the defendant at his request. Henry R. Howland was sworn as a witness, and his testimony seems positive and direct upon that subject. He states without qualification that at various times between the 31st day of March, 1893, and the 1st day of July, 1893, the plaintiff performed services and delivered goods, wares and merchandise to the defendant, at his request, worth $1,796.26 ; that no part of the same has been paid except the sum of $1,307.85.” He further states that the difference is due and owing, etc., which is no doubt a conclusion. But this conclusion in no way affects the positive testimony as to the delivery of the goods to the defendant at his request and their value. The law implied a promise on the - part of the defendant to pay for them when delivered to him at his request, and in the absence of any claim to the contrary in the answer the presumption is that they were to be paid for on delivery.

Section 1775 of the Code of Civil Procedure requires that in an action by or against a corporation the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation; must state whether it is a domestic or foreign corporation, and if the latter the state, country or government by or under whose laws it was created. The complaint in this case does not state whether or not the plaintiff is a corporation, and for that reason, assuming that it is a corporation, the defendant claims that the complaint is defective in two respects, namely, within subdivisions 3 and 8 of section 488 of the Code of Civil Procedure, and that he can take advantage of those defects on this appeal. We think, however, .that by answering upon the merits he waived those defects. They did not even render the complaint demurrable within either of the above subdivisions. Phoenix Bank v. Donnell, 40 N. Y. 410; Haefner v. Grumme, 10 Civ. Proc. Rep. 176; Rothschild v. The G. T. R. R. Co., 38 N. Y. St. Repr. 869; Adams v. Lamson, etc., Co., 35 id. 518.

The judgment appealed from should be affirmed, with Costs.

Titus, Ch. J., and Hatch, J., concur.

Judgment affirmed, with costs.  