Banks v. Bensky — 27 N.Y. St. Rep. 135

Majority

p. 135

Charles Banks, Resp’t, v. Nathan Bensky, App’lt.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Venue—Convenience of witnesses.

Where the answer in an action for assault denies the allegation of the complaint and alleges that defendant was the person assaulted, the place of trial may he changed for the convenience of witnesses as to defendant’s condition after the assault, and the fact that no witnesses were present at the time of the assault is no ground for denying the motion.

Appeal from order denying a motion to change the place of trial.

E. A. Carpenter, for app’lt; J. Adrianes Bush, for resp’t.

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 on 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 he asks. The order made should be reversed, therefore, and motion to change the place of trial granted, with ten dollars costs of this appeal and the disbursements.

Van Brunt, P. J., and Daniels, J., concur.