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Dunham v. Parmenter

26 N.Y.S. 955 Court N.Y. Gen. Term Decision date 1893-12-15 English

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p. 955
DUNHAM v. PARMENTER.
(Supreme Court, General Term, First Department.
December 15, 1893.)

Headnote

Change op Venue—Convenience op Witnesses.
In an action for the conversion of numerous chattels, a change of venue to the county where the alleged conversion took place will be granted, where it appears that the greater number of witnesses reside in such county; but defendant will be required to stipulate that the evidence of plaintiff’s witnesses residing in the county where the action was-brought may be taken by deposition, and used with the same effect as if the witnesses were present.
Appeal from special term, New York county.
Action by Wales Henry Dunham against Hartley H. Parmenter to recover for the conversion of certain personal property in Clinton county. The articles alleged to have been converted are over. 50 in number, and are enumerated in the bill of particulars served with the complaint. Defendant moves for a change of venue to Clinton county.
Granted.
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT„ JJ.
Sheldon & Booth, for appellant.
J. George Flammer, for respondent.

The transactions out of which the alleged cause of action arose all occurred in the county of Clinton. The defendant makes out a case for a change of place of "trial. But the plaintiff testifies to six witnesses residing in the county of New York,, whose evidence he regards as material to establish his cause of action. Considering the nature of the action, the place where the ■transactions occurred, the possibility of an earlier trial, and the materiality of the testimony of the greater number of witnesses, we think the motion should have been granted, upon condition that the

p. 956
•defendant stipulate that the evidence of the witnesses residing in this city be taken, if the plaintiff so elects, by deposition, to be used on the trial with the same force and effect as though they were produced and sworn. Order reversed, and motion granted, provided the -defendant gives the stipulation to take the testimony of the witnesses residing in New York county on deposition, without costs to -either party. Upon failure to make the stipulation, the order is affirmed, with costs.