Benedict v. Hibbard — 5 Hill & Den. 509

Majority

p. 509

Benedict vs. Hibbard.

Headnote

On a motion to change the venue from the county of O. to the county of C., the defendant’s affidavit stated that the action was brought to recover for services as attorney and counsel rendered by the plaintiff while he resided in the county of C., that the defendant had twenty witnesses in the latter county, and that if the plaintiff should claim to have more than one witness [naming him] in the county of O., the others could only be material for the purpose of proving the value of the services for which the action was brought, which might as well be proved by witnessess residing in the county of C. In opposition to the motion the plaintiff swore to twenty-five witnesses in the county of O., ten of whom were attorneys and counsellors at law, but omitted to answer the matters specially set forth in the defendant’s affidavit. Held, that the motion should be granted.

J. Edwards, for the defendant,

moved to change the venue from Oneida to Chenango county, on an affidavit that the defendant had twenty witnesses in the latter county. The affidavit further stated that the action was brought to recover attorney and counsel fees in several suits conducted by the plaintiff while he lived in the county of Chenango, and that if the

p. 510

plaintiff should claim to have more than one witness [naming him] in the county of Oneida, they could only he material for the purpose of proving the value of the services for which the plaintiff sought to recover, which might as well be proved by witnesses residing in Chenango.

W. McCall, contra,

read the plaintiff’s affidavit, stating that he had twenty-fine witnesses in Oneida, but saying nothing about that part of the defendant’s affidavit which was special. It appeared that ten of the witnesses mentioned in the plaintiff’s affidavit were attorneys and counsellors at law.

As the plaintiff has given no answer to the matters specially alleged in the moving affidavit, he has virtually admitted that ten of his witnesses in Oneida are only material for the purpose of proving the value of his services as an attorney and counsellor at law, which fact can as well be proved by witnesses residing in Chenango where the services were rendered. If those ten witnesses are deducted, as we think they should be, there will then be the greatest number of witnesses in Chenango.

Motion granted.