Tuthill v. Felter — 6 N.Y.S. 173

Majority

p. 173

Tuthill v. Felter et al.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

1. Venue in Civil Cases—Change.

An action brought in one county on notes which, it appears, were given in another county for wood to be delivered in the latter county, is properly changed to that county where it appears that plaintiff’s agent, who took the notes, and witnesses, who heard the contract, live in that county.

2. Same—Affidavit. u

An affidavit by defendant on a motion to change the venue to the county where the notes were given, which sets out the facts to which his witnesses, living in that county, are expected to testify, is unobjectionable.

Appeal from special term, Suffolk county.

Action on two promissory notes by Benjamin Tuthill against Josiah Felter and Allison M. Archer. On defendants’ motion the venue was ordered changed to Rockland county, and from this order plaintiff appeals.

Argued before Barnard, P. J., and Pratt, J.

Thos. J. Bitch, Jr., for appellant. Wm. McCauley, Jr., for respondent.

The paper showed that the notes were given in Rockland county. The notes were given for wood to be delivered in Rockland county. The delivery was never made, as I infer from the pleadings and affidavits, if the notes were given for wood to be delivered. If given for other sales, when there were deliveries made, then there is no defense to the action. The issues, therefore, would be most properly tried in Rockland county. The plaintiff’s agent, who took the notes, lives there, and the plaintiff’s employes, who heard the contract when the notes were given, live there. The defendants’ witnesses are not very essential on the trial. Hone of them witnessed the contract, and whether the cargoes of wood which were delivered by the plaintiff’s complaint were in execution of the contract in which the notes wreregiven does not appear to be within their knowledge. The affidavit of de

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fendants upon the motion is unobjectionable. The facts which the witnesses are expected to testify to are set out in full, and without this the motion would have been denied. The order should therefore be affirmed, with costs and disbursements.

Pratt,cJ., concurs.