Woods v. Van Ranken — 1 Cai. 121

Majority

p. 173

Woods against Van Ranken.

Headnote

To change the venue in a transitory action, very special cause must be shown.

Van Vechten moved to change the venue from New* York to Albany, in an action on the following promissory

p. 174

note: “ On or before the 18th day of February next, foi value received, I promise to pay at the Bank of Albany, to Maus B. Van Banlcen or order, seven hundred and twenty-five dollars. Witness my hand this 9th day of August, 1802.

“ Derick Tee Broeck.”

The deposition on which he ipoved, stated it to have been given on a usurious consideration, but did not set forth in what the usury consisted, nor between whom it had passed.

Woods

read an affidavit made by the agent of the plaintiff, who was the second endorsee, denying all usury in hiiiself, or any one else, to his knowledge, and that the note was taken in part payment for a bona fide sale of goods in Hew-York. In addition to this, Woods insisted on the general rule, that in transitory actions the venue is never changed except on very cogent and strong circumstances. He also relied on the deficiency of the defendant’s affidavit

This is an application to change the venue in a transitory action; special cause^[2] ought, therefore, to be shown. We are of opinion that what has been done is not sufficient to take the case out of the general rule adopted with respect to suits of this nature. The defendant ought to have offered as much to change, as the opposite party would have been obliged to allege in order to retain.

Supposing, therefore, that to be the criterion, he [*123] ought to *show when the usury originated, and that the witnesses resided here; but the affidavit does not state when the usury took place, nor that the cause of action arose in Albany. For though the note is apparently made here, and payable at the Bank of Albany,

p. 175

■ it was negotiated in Bew-York, and the presumption is, it was made where it was passed. The doctrine now acted upon is established. 1 D. & E. 781.^[2] It is necessary to show that the cause of action arose, and that material testimony is to be given in the place where the venue is to be removed. The defendant, therefore, can take nothing by his motion.

Motion denied.^[3]

Radcliff and Livingston, Justices, absent.

(a) (a) Foster v. Taylor.

(b) (b) In transitory actions, the courts are not disposed to take from the plaintiff his right of electing the venue; Holcroft v. Colwest.; Andr. 65, therefore, on an award day it has been refused; Whitburn v. Staines, 2 Bos. and Pull. 355, yet on a promissory note it may be changed; Kirk v. Broad, Say. 7, especially if some serious inconvenience will arise from denying the application. Ev ans v. Weaver, 1 Bos. and Pull. 20. But in the C. P. engaging to give evidence on a count on a promissory note, in the county where the venue was laid, has been held a sufficient cause for denying a change. Duke of Bedford v. Bray, Barnes, 491. Downes v. Brian, 2 Black. 993 . See ante, p. 4, n. (a).

Footnotes

(a) (a) Jenkins ads. Union Turnpike Company, Caines’ Prac. 126. Sayer and Hurd v. Brevoort, id. ibid. Slosson ads. Wheaton, Col. Cas. 121. Baker v. Sleight, 2 Caines’ Rep. 46 . Gibbs ads. Scott, Col. Cas. 12Í.