Spencer v. Hulbert — 2 Cai. 374

Majority

p. 374

Spencer against Hulbert.

Headnote

In a transitory action the defendant is entitled to change the venue to whore his witnesses reside, unless the plaintiff show he has witnesses elsewhere.

Simonds moved to change the venue to Onondaga, on affidavit by the defendant, that witnesses, which his counsel advised were material for him, resided there.

Williams, contra.

The action is for goods sold and do livered in Hudson, where the plaintiff lives.

Here is special matter in addition to the common affidavit, and in such a case, unless the plaintiff will, by affidavit, state that he has one or more witnesses residing elsewhere than in the county where the venue is moved for, the court will order it to be changed. It is just and reasonable, where the plaintiff has no witnesses out of the county where the venue is moved for, that we should grant the application *even though the action be goods sold and delivered, or other transitory matter.

Yenue changed.