Fish v. Fish — 61 A.D. 572

Majority

p. 572

Mary M. Fish, Respondent, v. Leonard F. Fish, Appellant.

Headnote

OJicmge ¿f venue — absence, in opposing affidavits, of a statement as to advice of ■counsel — conditions imposed.

Affidavits, used in opposition to a motion to change the venue of an action for the convenience of witnesses, which fail to show the advice of counsel that the testimony of the witnesses enumerated is material and necessary for the establishment of the plaintiff’s case, are fatally defective and cannot countervail the allegations of the moving party.

In an action brought to obtain a divorce, in which the plaintiff claimed that she would be unable to pay the expenses of her witnesses if a motion to change the' venue were granted, the court, as a condition of granting the motion, required the defendant to stipulate to allow the testimony of the plaintiff’s witnesses to be taken in the county in which the action was brought, or if she preferred to have her witnesses actually present at the trial, to pay their traveling fees as witnesses to the county to which the venue was changed.

Appeal by the defendant, Leonard F. Fish, from an order of the. Supreme Court, made at the New York Special' Term and entered in the office of the clerk of the county of New York on the 3d

p. 573

day of April, 1901, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Montgomery" for the convenience of witnesses.

Edga/r T. Brackett, for the appellant.

Abram Kling, for the respondent.

The action is brought for a divorce on the ground of adultery alleged to have been committed by the defendant in the city of Albany; and the answer contains a denial of the charge and a counterclaim in which a similar charge is made against the plaintiff. As usually happens on motions of this character, each side endeavors to show that it has more witnesses than the other ; and in the presefit case the defendant enumerates nine witnesses who are, he swears, necessary and material for his defense, all of whom reside in the county of Montgomery ; while the plaintiff names ten witnesses who reside in the city of New York, by whom she expects to prove her cause of action.

It appears that the parties were married and always resided, and that the defendant now resides, in Montgomery county, the same county in which the parents of the plaintiff reside and where she herself has lived during her entire life until within a few months before the commencement of this action, when she came to New York city and obtained, as she claims, a residence. If we were to assume, therefore, so far as the number of witnesses is concerned, that the conditions are evenly balanced, these facts are entitled to be considered also in determining the question of change of venue; but the affidavits used in opposition to the motion are fatally defective in that they fail to show the advice of counsel that the testimony of the witnesses is material and necessary for the establishment of the plaintiff’s case on the trial of the action, and, therefore, they cannot countervail the allegations of the moving party. We think, however, that the financial inability, as claimed, of the plaintiff to pay the expenses of her witnesses should be considered. Our conclusion is that, if the defendant will stipulate to allow the testimony of the plaintiff’s witnesses to be taken in New York city, or, if she prefers to have them actually present at the trial, that he

p. 574

will pay their fees as witnesses to Montgomery county, the motion should be granted.

The order accordingly should be reversed, without costs.

Present—Patterson, O’Brien, McLaughlin, Hatch and Laugh-LIN, jj. .

Order reversed and motion granted, without costs, on defendant’ giving the stipulation mentioned in opinion, and, upon his refusal, order affirmed, with ten dollars costs and disbursements.