Majority
p. 1024FUCHS v. FITZER. (Supreme Court, Appellate Division, First Department. April 24, 1908.) Argued before INGRAHAM, LAUGHLIN, CLARICE, HOUGHTON, and SCOTT, JJ.
Headnote
Venue—Change—Sufficiency -of Affidavit.In an action brought in New York county for an assault committed in Utica, defendant, on motion for a change of venue, specified eight witnesses, six of whom were said to have been present at the time of the alleged assault, who could testify in his behalf, and gave their occupations, residence, and the substance of what they would testify to. Advice of counsel was also properly sworn to. Plaintiff denied that any of the specified witnesses were present, and alleged that he had one witness in New York, with whom he had conversed, and who confirmed his version of the assault. He did not swear to the advice of counsel. Held, that a change of venue should have been granted.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Venue, § 119.]
Appeal from Special Term.
Action by Emanuel Fuchs against Jacob Fitzer. Fom an order denying a motion for a change of venue, defendant appeals. Reversed.
p. 1025
Samuel Marks, for appellant.
Philip C. Samuels, for respondent.
The action is brought for damages for assault committed in defendant’s store in Utica. Defendant specifies eight witnesss, six of them said to have been present, who. can testify in his behalf. Their occupations and residences are given, and the substance of what they will testify to. Advice of counsel is also properly sworn to. Plaintiff says that none of those witnesses were present. He also says that he has one witness .in New York, with whom he has conversed, and who confirms his version of the assault. He does not swear to the advice of counsel.
The motion should have been granted, and the order denying it must be reversed, with $10 costs and disbursements, and the motion granted.