Hayes v. Garson

The action is brought by the assignee of a judgment creditor, against the defendants therein and one Bertha C. Garson, to reach certain- assets of the defendants, on the ground of their collusion with other creditors in securing a preferential application of such assets. The complaint alleges that the defendants Moses L. Garson and James C. Wood, who reside and were in business in Monroe county under the name of Garson & Wood, bought goods of the Standard Folding-Bed Company, in the city of New York, on credit, and upon certain false representations as to their solvency; that before the time of credit expired the defendants conspired with the defendant Bertha 0. Garson to have judgments entered in her favor against themselves, upon a false and fraudulent cause of action, and to have their property taken and sold upon execution; and that this scheme was effected. The company obtained a judgment for its claim on May 3,1897, and assigned the same to the plaintiff, who resides in Westchester county, where the venue was laid. A motion was made to change the place of trial to Monroe county, and from the order granting the motion the plaintiff appeals. The plaintiff presented an affidavit to oppose the

“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.”

We think the rule may be further limited, and that wherever, by an inspection of the moving papers, it appears that there is a reasonable ground for the expectation of the moving party that he will be able to prove by the witnesses the stated facts,—as, for instance, that the witnesses must necessarily know the facts,—the court, in the exercise of its discretion, may fairly conclude that the statement of such expectation is the equivalent of a positive statement of ability, even where the affidavits of the witnesses are not produced on the motion. These views, we think, control the present appeal, and for this reason: The allegation of the complaint is that the judgment debtors conspired with Mrs. G-arson, and gave her a fraudulent judgment. The affidavits state that the defendants expect to prove certain facts by the twenty-seven* witnesses referred to therein, all but one of whom reside in ¡Rochester. It may be admitted that the number of witnesses is liberally stated, and with an exaggeration of the large number necessary to establish the defense to which parties are prone in affidavits of this character. Some of the witnesses, prior to May 3d, obtained judgments against the defendants, and issued executions thereon, attended the sheriff’s sale, and purchased some of the assets at their fair value; and, the affidavits state, their claims were valid and honest. Within this class are five of the witnesses. Two others are presidents of banks at Rochester, who are expected to testify that they had valid claims against the firm, which transferred to them certain of its assets as security for their claims. As to these

We think the discretion of the learned judge at special term was fairly exercised, and we are not inclined to disagree with his conclusions. Order affirmed, with $10 costs and disbursements. All concur.