Marvin Lane, Adm’r, Resp’t, v. The Town of Hancock, App’lt.(Supreme Court, General Term, Third Department,Filed February 24, 1890.)Headnote
Venue— Change of.The general term will not interfere with the decision of the special term upon its decision of a motion to change the place of trial for convenience of witnesses unless there has been a plain and evident abuse of discretion.
Appeal from order denying motion to change the place of trial from Sullivan to Delaware county made on the ground of convenience of witnesses.
Action to recover for injuries sustained upon a highway in the defendant town. Plaintiff now lives in Sullivan county and brought the action there.
The motion was made upon the affidavit of defendant’s supervisor, who gives the names of seventeen witnesses living in his town whom he claims on advice of counsel to be material and necessary.
Plaintiff’s answering affidavits show that two of said witnesses do not reside in said town and that several of said witnesses are more convenient to the county seat of Sullivan than to that of Delaware county; and set forth the names of twelve witnesses residing in Sullivan county who are material and necessary for plaintiff.
W. J. Welsh, for app’lt; John F. Anderson, for resp’t.
There are very few cases in which we ought to interfere with the decision of the special term on a motion to change the place of trial for the convenience of witnesses. The matter is one of sound judgment and discretion, not one of law. And unless there has been a plain and evident misuse of such discretion the decision of the special term must stand.
Such a case is not before us. Without attempting an exact, enumeration of the witnesses, it is enough to say that there was no great preponderance on either side.
Of course it is well known, that though the convenience of witnesses is the ostensible, it is not the real motive of such motions. The supposed interest and convenience of the parties are the reasons for making and for opposing. And it is seldom that, on the trial, all or nearly all the witnesses are called who have been stated to be absolutely necessary and indispensable. Very probably such will be the result in this case.
Order affirmed, with ten dollars costs, and printing disbursements.
Landon, J., concurs.