Rhodes v. Wheeler — 63 N.Y.S. 177

Majority

p. 177

(48 App. Div. 361.)

RHODES et al. v. WHEELER et al.

(Supreme Court, Appellate Division, Third Department.

March 7, 1900.)

Headnote

1. Chanse of Venue — Admtsston to Prevent.

Where a party is entitled to a change of venue for convenience of witnesses, a stipulation that such witnesses will swear to the facts as alleged in his affidavit for a change is insufficient to authorize a denial thereof, as he is entitled to their presence on the trial, and to the benefit of their oral testimony.

2. Same.

An admission that witnesses will testify to certain facts is not an admission of the truth of such testimony, or of the facts themselves, warranting a denial of a change of venue.

p. 178

Appeal from special term, Montgomery county.

Action by John H. Rhodes and another against Joseph B. Wheeler and another. From an order denying a motion for a change of venue from Montgomery county to Broome county, defendants appeal.

Reversed.

Argued before PARKER, P. J., and HERRICK, MERWIN, SMITH, and KELLOGG, JJ.

Lyon, Painter & Hinman (H. D. Hinman, of counsel), for appellants.

Risley & Love, for respondents.

The substantial and material acts alleged in the plaintiffs’ complaint were committed, if at all, in the city of Binghamton, Broome county. The great majority of the witnesses upon the crucial points in the case evidently reside in the city of Binghamton. A stipulation that the witnesses will swear to the facts as alleged in the affidavit of the moving party is not sufficient. The party is entitled to their presence upon the trial, and to the benefit of their oral testimony, so that the court and jury may be better able to determine whether they are telling the truth or not.

Am admission that witnesses will testify to certain facts is not an admission of the truth of such testimony, nor an admission of the facts themselves. Ingal v. Stoddard, 35 App. Div. 539 -541, 54 N. Y. Supp. 813 .

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs of motion, to abide the event of the action. All concur.