
    Jacob S. Lansing vs. Philo Mickles.
    An affidavit on which a motion is founded for a commission, should state that the witness is material as he is advised by Ms counsel, after stating Ms case, ifc.
    
    
      Motion by defendant for a commission.—It was objected that the affidavit of defendant was defective. The defendant swore, “ that Wm. S. Holerbard, gentleman, of Winchester, in the state of Connecticut, is as deponent believes, a material witness for deponent in this cause, &c,” “ And this deponent further says, that he has fully and fairly stated his case in this cause to John G. Forbes his counsel, who resides in Syracuse, county of Onondaga, and disclosed to his said counsel the facts which he expects to prove by the said witness and that without the benefit of the testimony of the said William S. Holerbard, this deponent can not safely proceed to trial of this cause as he is advised by his said counsel and verily believes;” and that deponent has a good and substantial defence on the merits, &c.”
    A. Taber, Bafts Counsel. Forbes & Sheldon, Bafts Attys.
    
    M. T. Reynolds, Plffs Counsel. D. Brown, Riffs Atty.
    
   It was insisted on the part of the plaintiff that the affidavit did not come within the rule ; it did not state that the witness was material, on the advice of counsel after he had stated his case, fyc.

Beardsley, Justice.

Denied the motion with costs, and without prejudice, on the defect mentioned in the affidavit.  