Robinson v. Merritt

Headnote

A defendant must state in his affidavit of merits, on motion to change the venue, that he has disclosed to his counsel what he expects to prove by his witnesses.

Motion by defendant to have the venue declared by the court to be laid in the county of Westchester, or in case it should be considered already laid in the city and county of New York, then, that it be changed to the county of Westchester.—This was an action of slander, the declaration in the margin laid the venue in the city and county of New York, and throughout the body of the declaration, the venue was referred to as follows : “ to wit, at the town of New Rochelle, in the said county of Westchester.” Defendant’s counsel moved that the court decide where the venue was laid by the declaration. The judge replied, that the counsel must decide where the venue was, and whether he wished to change it or not. The counsel then moved that the venue be changed from the city and county of New York to the county of Westchester. An objection ywas taken to defendant’s affidavit of merits; that part of the affidavit objected to, read as follows; “ That this deponent has a large number of witnesses residing in the said county, whose testimony will be material to him on the trial of this cause, who will speak to the character of the plantiff, and without the testimony of each and every of whom this deponent could not safely go to trial in this cause, as he is advised by his counsel and verily believes.” There was no statement in the affidavit that defendant had disclosed to his counsel what he expected to prove by his witnesses.