Majority
p. 523(81 Hun, 79.) TUSKA v. WOOD et al. (Supreme Court, General Term, First Department. October 12, 1894.) Argued before VAN BRUNT, P. J., and O’BRIEN and FOLIETT, JJ.
Headnote
Change of Venue—Evidence of Witness—Affidavits.An affidavit to change place of trial for convenience of witnesses, which states that the moving party “expects” to prove certain facts, without showing that the facts can probably be established by the designated witness, is insufficient.
'Appeal from special term, New York county.
Action by Alonzo L. Tuska against George B. Wood and others. Defendant moves to change place of trial to the county of Onondaga. The motion was denied, and defendants appeal. Affirmed.
C. A. Andrews, for appellants.
Vincent Rosemon, for respondent.
In view of the conflict as to the number of witnesses respectively to be produced upon the trial, and the bearing that their testimony would have upon , the issues, it cannot be said that, in determining that the convenience of witnesses would not be served by a change of place of trial, the judge at special term was guilty of a misuse of his discretion. Apart, however, from this, we think that the affidavits upon which the motion itself was based are clearly insufficient, within the case of Thurfjell v. Witherbee, 70 Hun, 401 , 402, 24 N. Y. Supp. 278 , wherein it is said:
“Affidavits to change the place of trial, which state that the moving party can prove material facts by the persons named, are held to be sufficient; but affidavits stating that the moving party ‘expects’ to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated. This may be done by positive averments made by the party, or by affidavits of the proposed witnesses.”
The order appealed from is therefore affirmed, with $10 costs and disbursements.