Fuchs v. Fitzer

The action is brought for damages for assault committed in

defendant’s store in Utica. Defendant specifies eight witnesses, six of them said to have been present, who can testify in his behalf. Their occupations and residences are given and the substance of what they will testify to. Advice of counsel is also properly sworn to. Plaintiff says that none of those witnesses were present. He also says that he has one witness in New York with whom he has conversed and who confirms his version of the assault. He does not swear to the advice of counsel. The motion should have been granted, and the order denying it must be reversed, with ten dollars costs and disbursements, and the motion granted. Present — Ingraham, Laughlin, Clarke, Houghton and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.