Ackerman v. Herrick

Headnote

Change op Venue—Convenience op Witnesses.

Where the party moving for a change oE venue for the convenience of witnesses claims and seems to have the larger number of witnesses to be convenienced by the change, an order granting the motion will not be-disturbed on appeal.

Appeal from special term, Orange county.'

Action by Matilda Ackerman, administratrix, etc., of John K.. Ackerman, deceased, against Mary A. Herrick. From an order granting defendant’s motion to change the place of trial from. Orange to Ulster county, plaintiff appeals.

Affirmed.

Defendant’s affidavit for a change of venue is as follows:

“That this action is brought to recover the sum of seven thousand eight hundred and sixty dollars and eighty-two cents, with interest since July 1,. 1891, which is alleged to be represented by two deposit books, issued by the Ulster County Savings Institution, of the city of Kingston, Ulster county, N. Y., and by one deposit book issued by the Newburgh Savings Bank. The-"defense is that one of the said deposit books issued by said institution is numbered 21,937, and that the deposits represented thereby were made by the defendant herself, with her own money, and in her own name, and that ever since the date of the first deposit thereon, to wit, February 19, 1887, she has-had the actual and rightful possession thereof, and since that time has been, and still is, the sole and exclusive owner thereof, and of the deposits, credits, money, and property represented thereby. That the other deposit 'book issued by said institution is numbered 23,238, and was issued to John K. Ackerman in his lifetime, but the said John K. Ackerman, deceased, on or about January 1, 1890, duly assigned, gave, and delivered said deposit book, and1 the deposits, credits, moneys, and property represented thereby, to this defendant. That she has ever since that time been in the actual and rightfuli possession of the same, and is the sole and exclusive owner of the said deposit book, and is entitled to the deposits, credits, moneys, and property represented thereby. That the said Ulster County Savings Institution has been restrained by the court from paying a portion of the deposit and money represented by said deposit books, and from paying interest for a portion of the time for which interest is claimed by the complainant herein. That said1 transaction took place and occurred in Ulster county. That said deposit book issued by the Newburgh Savings Bank is numbered 36,328, and that the-deposits entered therein and represented thereby were made in trust for this defendant by her father, the said John K. Ackerman, deceased, and he caused the following entry to be made upon the said deposit book and the books of the said bank: ‘J. K. Ackerman, in trust for Mary A. Herrick.’ That the defendant thereby became entitled thereto, and to the credits, deposits, and" money represented thereby. That the said deposit book was. delivered to this-defendant by the plaintiff with the intention that she should draw the money thereon, which she accordingly did. That the next circuit in the county of Ulster is appointed to be held on the 10th day of April, 1893, and the next circuit court in Orange county is appointed to be held at Newburgh on the 10th day of April, 1893. That there has been no circuit in either county at which this cause could be noticed for trial since issue was joined as aforesaid. That this deponent has fully and fairly stated to her counsel the-facts she expects to prove by each and every one of the following witnesses,, viz. Daniel Herrick, John V. Herrick, Irving Herrick, Charles W. "Deyo,. Charles D. Bruyn, Cornelius Hume, Samuel D. Coykendall, Alfred Van Nostrand, John G. Burger, and George W. Burger, and John B. "Alliger, the-treasurer of said Ulster County Savings Institution. That each and every one of them are material and necessary witnesses for her defense on the trial1 of this cause, as she is advised by her said counsel, and verily believes;.

and that without the testimony of each and every one of the said witnesses this defendant cannot safely proceed to the trial of this canse, as she is also advised by her said counsel and verily believes; and that each and every one of said witnesses reside in the county of Ulster; and that ail of said witnesses reside in the city of Kingston, except John G-. Burger, who resides-at St. Remey. about three miles from said city of Kingston. That the facts she expects to prove by said witnesses are as follows: By said Daniel Herrick, Irving Herrick, John V. Herrick, Samuel D. Coykendall, George W. Burger, and John G. Burger, that the said John K. Ackerman, deceased, in his lifetime told and declared to each and every one of them that he had given and delivered the said deposit books issued by the.Ulster County Savings Institution, and the deposits and money represented thereby, -to this defendant, and that she was the owner of the same. That she expects to prove-by Alfred Van Norstrand that he was the bookkeeper of the Ulster County Savings Institution at the time the said deposits were made in the said institution, and that the defendant personally made a number of said deposits. That she expects to prove by Charles W. Deyo, Charles D. Bruyn, and Cornelius Hume that the assignment in said deposit book numbered 23,238 is in the handwriting of M. T. Trumpbour, and that he signed the same as a witness, thereto. That she expects to prove by John B. Alliger that he is the treasurer of said Ulster County Savings Institution, and as such has the charge, control, and custody of the books of said institution; that the original deposit represented by said book numbered 21,937 was made in the name of this defendant, and was so entered upon the books of said institution; that the said institution, its officers and agents, have been restrained from paying out a portion of the aforesaid deposits, and that they still retain the same, and the amount thereof; that the said institution, for a portion of the time for which interest is claimed by the complainant, have been restrained from paying any interest on its deposits, and she expects said witness to produce upon the trial of this action the books of said institution which contain the accounts of the said deposits represented by said bank books numbered 21,937 and 23,238.”

Plaintiff’s counter 'affidavit is as follows:

“That tin's deponent has fully and fairly stated to her counsel the facts she expects to prove by each and every one of the following witnesses, viz. Tillie White, Maggie Whitehead, Hattie Gordon, Dr. James Gordon, Abram M. Cook, Cornelius W. Blauvelt, John Hayes, George Barber, George W. Decker, George Kraft, L. S. Sterrit, Robert N. Whelan, Thomas F. Balfe, and Fred C. Balfe. That she herself and each and every one of them is a material and necessary witness for the plaintiff on the trial of this action, as she is also advised by her said counsel and verily believes, and that each and every one of the said witnesses resides in the city of Newburgh, Orange county. That the facts she expects to prove by said witnesses are as follows, viz.: By Tillie White and deponent the statements and admissions of the defendant that money in the Ulster County Savings Bank was the property of said John K. Ackerman; and also admissions to the same effect by the husband of the defendant, in case he should be a witness. By Cornelius W. Blauvelt, John Hayes, George Barber, and George W. Decker, who worked with him for the Pennsylvania Coal Company at Newburgh, and who were especially intimate with him, the amount of money he earned, and what he did with it; that he deposited part in Newburgh Savings Bank and part in Ulster County Savings Bank, and that such money so deposited in said banks was all the proceeds of his (Ackerman’s) own earnings. By Robert N. Whelan,. Thomas F. Balfe, and Fred C. Balfe, all of whom are employed in the New-burgh Savings Bank, that Ackerman deposited all the moneys in the New-burgh Savings Bank book which is set forth in the complaint; that J. K. Ackerman retained possession of said book himself, and had possession of it at the time of his death, and that defendant never had possession of said book until after the death of said Ackerman, and furnished no part of the money that was deposited in said Newburgh Savings Bank; also the reason why he deposited his money in different banks and names was because full interest was' only paid on a certain amount. By deponent, Tillie White,

Maggie Whitehead, and Hattie Gordon, who were members oí the household of said J. K. Ackerman, his having money ■ of his own earnings in both the Ulster County and the Newburgh Savings Banks; that the money.belonged to him, and not to defendant; that the Newburgh Savings Bank book was in his possession at his house, at Newburgh, at the time of his death, and never had been out of his possession; and other matters-pertinent to the issues. By Dr. James Gordon, Mr. Ackerman’s physician, Abraham M. Cook and George Kraft, his friends, that he had money of his own earnings, which he deposited in both Ulster County and Newburgh Savings Banks, and that he was the owner, and in possession, of a book in each bank, which are the subjects of this action. By L. S. Sterrit the circumstances under which the Newburgh Savings Bank book was given up after the death of Mr. J. K. Ackerman. That-deponent is willing to admit on the trial of this action that the assignment in book No. 23,238 is in the handwriting of M. T. Trumpbour, and that he signed the same as a witness. That such assignment reads as follows: ‘In case of my death, to my daughter Mary Ann Herrick. Kingston, Jan. 1, 1890. J. K. Ackerman. Witness: M.-T.-Trumpbour,'— which does away with the necessity of the attendance of Charles W. Deyo, Charles D. Bruyn, and Cornelius Hume, proposed witnesses for the defendant. That she is also willing to admit on the trial any transcript from the books of the Ulster' County Savings Institution, certified to by its officers, which will save the necessity of their attendance or the production of the original books. That the three Herricks named as witnesses for defendant are members of her family. That all cases in Orange county can be tried at the first circuit court at which they are reached, but this is not so in Ulster county, and it takes a long time to reach and try a case there.”