White v. Hall — 40 N.Y.S. 945

Majority

p. 945

(8 App. Div. 618)

WHITE et al. v. HALL et al.

(Supreme Court, Appellate Division, First Department.

July 31, 1896.)

Headnote

Change of Venue—Convenience of Witness—Affidavit.

Moving affidavit is insufficient where it merely states that affiant expects to prove certain things, and not that he can prove them.

Appeal from special term, Hew York county.

Action by Samuel White and others against Edwin M. Hall and others to recover chattels. From an order denying a motion to change the place of trial from the county of Hew York to the county of Tompkins, defendants appeal. Affirmed.

Argued before BARRETT, RUMSEY, PATTERSOH, and INGRAHAM, JJ.

Tompkins & Cobb, for appellant Hull and others.

Halliday & Denton, for appellant First Hat. Bank.

James L. Baker, for respondents.

The rule that an application of this kind cannot be granted without an affidavit of merits in proper form is too well settled to be now questioned. The affidavit of merits submitted by the defendants in this action was clearly insufficient, and for that reason the motion below was properly denied. The moving affidavit of Henry L. Clark was also insufficient in that it states that he expects to prove certain things by witnesses, and not that he can prove them. See McPhail v. Ridout, 83 Hun, 446 , 31 N. Y. Supp. 934 ; Thurfjell v. Witherbee, 70 Hun, 401 , 24 N. Y. Supp. 278 . We do not wish to be understood as passing upon the merits of this application, and this decision is without prejudice to a renewal of the motion at special term upon proper affidavits.

Order affirmed, with $10 costs and disbursements, without prejudice to another application upon new papers.