Weed v. Halladay — 1 How. Pr. 73

Majority

p. 73

James M. Weed vs. Smith S. Halladay.

Headnote

The greatest number of witnesses in opposition to a motion to change venue, will not prevail to retain the venue under all circumstances.

Motion by defendant to change the venue from New York to Niagara. Defendant swears to twelve witnesses in Niagara and five in Erie. And twenty-four are sworn to on the part of the plaintiff as residing in New York. The action is stated to he on a promissory note given for a hill of merchandise. The defendant’s affidavit states that if the plaintiff should claim to have more than two witnesses in New York, one his book-keeper or clerk, whose name is not remembered, and the other one Hasbrook, they can only be material for the purpose of proving the hand writing of the defendant, which may as well be proved by witnesses residing in Niagara where the defendant resides and has resided for several years. No answer is given by the plaintiff to this statement.

S. P. Nash, Defts Counsel. E. Newton, Defts Ally.

C. P. Kirkland, Plffs Counsel. E. W. Williams, Plffs Atty.

Upon these papers, we must intend that twenty-.two of the plaintiff’s witnesses are deemed to be necessary to prove the defendant’s hand writing, a fact which can as well be heard by witnesses residing in Niagara, as those who reside in New York ( 5 Hill, 509 , Benedict vs. Hibbard). The motion must be granted.

Rule accordingly.