Briasco v. Lawrence — 21 N.Y. St. Rep. 964

Majority

p. 964

Rosanna Briasco, App’lt, v. Joseph B. Lawrence, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Veníie — Change of — When application premature—Residence of parties—Code Civil Pro., §§ 982-984.

Where on an application for a change- of venue-made on. the ground that material witnesses cannot attend in the county where-suit is. brought, it does not appear tliat the pláintiff is iiot a' resident of the county designated in the-complaint as: the place of; trial, ¡and'-the- application is inade* before issue is--joined, IfeZtZ,',that1 the! applicationis premature.

p. 965

3. Same—When affidavit on application defective.

An affidavit upon which the application is based which fails to state that the defendant has stated to his counsel what he expects to prove by his various witnesses, is defective.

Appeal from an order of the special term directing a change of venue from Kings county to Westchester county.

The action was brought in Kings county to recover damages for alleged slander. The defendant before serving his answer filed an affidavit for change of venue alleging that he was a resident of Westchester county; that his mother was a material witness and was very infirm, and co.uld not attend in Kings county, and that he had various other witnesses, residents of Westchester county, who could not attend in Kings county.

Horace Graves, for applt; L. G. & W. P. Platt, for resp’t.

There are two reasons why this order should not be granted. The action is one for oral slander, and it does not appear by the papers that the plaintiff is not a resident of the county of Kings, which is designated as the place of trial in the complaint. The place of trial would be proper in a county in which one of" the parties resided when the action was commenced. Code, §§ 982, 984.

The affidavits seem to point to the convenience of the witnesses as the reason for the proposed change. One material witness is named living in Westchester county, and it is stated that “at least five other material and necessary witnesses ” reside in that county. The answer to this is that the issue is not joined, and it is premature to move to change the place of trial for the convenience of witnesses before it is. The materiality of the witnesses cannot be ascertained until the issue is complete.

The order should be reversed, with costs to abide the event.

The defendant was premature in making this motion. Before serving his answer it was impossible to determine what witnesses would be material, or whether any witnesses would be necessary upon the trial. It is altogether probable that the witness Lydia Ann Lawrence will be a material witness upon the trial, and that it will be impossible for her to attend a court held out of the county where she resides, but the decisions are too numerous and uniform upon this point to be disregarded. To permit such practice would be a premium upon loches. The defendant had ample time to answer, and should have done so before asking for a change of venue.

The affidavit is also defective in failing to state that defendant has stated to his counsel what he expects to prove by his various witnesses.

Order reversed, with costs and disbursements.