Myers v. Village of Lansingburgh — 28 N.Y. St. Rep. 250

Majority

p. 250

Lizzie Myers, App’lt, v. The Village of Lansingburgh, Resp’t.

(Supreme Court, General Term,Third Department,

Filed December 11, 1889.)

Headnote

Venue—Affidavit for change of.

An affidavit upon which to move for a change of venue need not show how the affiant was able to state that the several persons named in the affidavit as necessary witnesses could testify as therein set forth. The test of such amotion is what does sound discretion require; and where that is not obvious an inspection of the affidavits may try their good faith.

Appeal from an order of the Albany special term, changing -the place of trial.

Doyle & Fitts, for app’lt; A. 0. Comstock, for resp’t.

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 W. Dig., 173, this omission is a fatal defect The rule intimated in the case cited is more stringent than we usually exact. Carpenter v. Continental Ins. Co., 31 Hun, 78 .

The requisite formalities as specified in the case last cited, in■cluding an affidavit of merits, being observed, the main test of such motions is what does sound discretion require. ■ Where this is not obvious 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.