Tuthill v. Felter — 25 N.Y. St. Rep. 151

Majority

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Benjamin Tuthill, App’lt, v. Josiah Felter, Impleaded, etc., Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Venue—When changed.

The action was brought in Suffolk county, on notes given for wood, to be delivered in Rockland county. The plaintiff’s agent, who took the notes, and the plaintiff’s employees, who heard the contract when the notes were given, live in the latter county. Held, that the action was properly changed to Rockland county.

2. Same—Aítidavit.

An affidavit by defendant, setting out in full the facts that his witnesses are expected to testify to, is unobjectionable.

Appeal from an order changing the place of trial of this action from Suffolk county to Rockland county, granted upon the application of defendant Felter. Separate actions were brought upon two promissory notes made by defendant Felter to the order of his co-defendant Archer, and held by the plaintiff, which were consolidated into one action after issue joined by service of answers by defendant Felter. The defendant Archer has not appeared herein, and his time to do so had expired when the motion was noticed for hearing. The application was made upon the ground that the ends of justice and convenience of wit

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nesses would be promoted by such change, and was based upon subdivision 3, of section 987, of the Code of Civil Procedure.

Thomas J. Bitch, Jr., for app’lt; William McCauley, Jr., for resp’t.

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 employees, who heard the contract when the notes were given live there.

The defendant’s witnesses are not very essential on the trial. Rone of them witnessed the contract, and whether the cargoes of wood which were delivered by the plaintiff’s employees were in execution of the contract in which the notes were given, does not appear to be within their knowledge.

The affidavit of defendant upon the notes is unobjectionable. The facts which the witnesses are expected to testify to are set out in full and without this motion would have been denied.

The order should, therefore, be affirmed, with costs and disbursements.

Pratt, J., concurs._