Majority
p. 28Same Term. Before the same Justice. Smith & Waldron vs. Averill.
Headnote
Where a party meets an application made by his adversary to change the venue, by a stipulation not to give any evidence except as to facts occurring in the county where the venue is laid, the venue will not be changed.Motion to change the venue from New-York to Clinton county. It appeared that the defendants were sued for a bill of goods as partners, and they swore to a number of witnesses residing in Clinton county, their residence, to prove that they were not partners. On the other side it was shown that the claim did not rest on evidence of the fact of partnership, but on evidence that at the time of purchasing the goods both the defendants were present and represented themselves as being partners.
P. G. Ellsworth, for the defendants,
C. A. Rapallo, for the plaintiffs.
If the facts as to the existence of the partnership were to be gone into, that would be a good reason, perhaps, for changing the venue. But as the plaintiffs’ attorney swears that their case rests upon another ground, viz., representations made in New-York by the defendants, respecting the partnership; and as he now offers to stipulate not to give any
p. 29
other evidence of the partnership than those representations, the venue may be retained in New-York, upon the giving of such a stipulation.
■a