Myers v. Village of Lansingburgh — 8 N.Y.S. 92

Majority

p. 92

Myers v. Village of Lansingburgh.

(Supreme Court, General Term, Third Department.

December 11, 1889.)

Headnote

Change of Venue—Moving Affidavit.

An affidavit on a motion to change the place of trial for convenience of witnesses need not state how affiant knows that the witnesses will testify as therein set forth.

Appeal from special term, Albany county.

Action by Lizzie Myers against the Village of Lansingburgh for personal injuries alleged to have been sustained by plaintiff by falling on a sidewalk in defendant village. Defendant moved to change the place of trial for convenience of witnesses. The motion was granted, and plaintiff appeals.

Argued before Learned, P. J., and Landon and Fish, JJ.

Doyle & Fitts, for appellant. A. C. Comstock, for respondent.

Upon the merits the order appealed from appears to be right. The moving affidavit does not show how the affiant was able to state that the several persons named as necessary witnesses could testify as set forth in the affidavit, and the appellant insists that under Kelly v. Maltham, 2 Wkly. Dig. 173 , this omission is a fatal defect. The rule intimated in the case cited is more stringent than we usually exact. Carpenter v. Insurance Co., 31 Hun, 78 . The requisite formalities as specified in the case last cited, including an affidavit of merits, being observed, the main test of such motions is, what does sound discretion require? Where this is not obvious, a critical inspection of the affidavits may test the good faith in which they are made. A full report of Kelly v. Maltham would probably show that the affidavit'criticised was not free from suspicion. Order affirmed, with costs.

Fish, J., concurs. Learned, P. J., takes no part.