Majority
p. 600Vander Zee against Van Dyck. shewed, on the usual affidavit, that the plaintiff had a greater number of material witnesses residing in Albany, than the defendant had sworn to on his part, as residing in Greerie. The application comes within Duryee v. Orcott,[1] . and the plaintiff cannot retain his venue unless he stipulate to give material evidence arising in Albany. The action is for a tort, and within the meaning of the rule laid down in the case cited..
Headnote
tn case, for a malicious prosecution, the- venue will be changed to the county where the cause of action arose, without regard to the number of witnesses, unless the plaintiff stipulate to give material evidence arising in the county where he has laid his venue.Case, for a malicious prosecution, before a Justice of the Peace of the county of Greene ; but the venue was laid in the county of Albany.
Foot moved to change the venue, from Albany to Greene..
P. Gansevoort, contra,
Foot.
The motion must bé granted, unless the plaintiff stipulate to give material evidence arising in the county of
Motion granted.[1]
(b) (b) Vid. Serially v. Wells, ante, 196.