Banks v. Bensky — 7 N.Y.S. 518

Majority

p. 518

Banks v. Bensky.

(Supreme Court, General Term, First Department.

November 7, 1889.)

Headnote

Change of Venue—Materiality of Witnesses.

In an action for assault and battery, where defendant alleges that he was assaulted by, and did not assault, plaintiff, and asks fora change of venue for convenience of witnesses, the fact that no person other than he and plaintiff were present at the time of the alleged assault is no objection to his right to the change, as the witnesses may be material to show defendant’s condition after the alleged "assault.

Appeal from special term, New York county.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

22. A. Carpenter, for appellant. J. Adrianes Bush, for respondent.

This is an action for the recovery of damages occasioned by an assault and battery committed by the defendant in the county of Suffolk, in this state. The defendant applied for a change of the place of trial for the convenience of witnesses. His affidavit complies with the rules of the court to be observed in such applications. The plaintiff responds by asserting that when the assault was committed he and the defendant were the only persons present, and assumes, from that circumstance, that the defendant’s witnesses cannot be material. He overlooks the defendant’s allegation that the latter was the person assaulted, and the witnesses he names are to prove his condition after the assault, and which indicated violent treatment at the hands of some person. These witnesses, although not present at the occurrence, may be material for the defense, and indeed must be so regarded in view of the defendant’s -averment that he did not assault the plaintiff, but that the latter assaulted him. The pleadings contain nothing which affects the right of the defendant to have the change made which lie asks. The order made should be reversed, therefore, and motion to change the place of trial granted, with $10 costs of this appeal, and the disbursements. All concur.