Maynard v. Chase — 30 N.Y. St. Rep. 348

Majority

p. 348

John Q. Maynard, App’lt, v. William W. Chase, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Venue—Change eob. convenience of witnesses.

Where the evidence as to convenience of witnesses is conflicting and there is no great preponderance, the place where the contract was made or the subject-matter of the action is located is an important element in. determining the question of a change of the place of trial.

Appeal from order changing the place of trial from Kings-county to the county of Orange for convenience of witnesses.

The action is brought to recover the sum of $242.44 for work, labor and material furnished in erecting an elevator at the city of Newburgh, and the defense is that the elevator as erected was not. within the terms of the contract made between the plaintiff and the defendant, and further that the price charged for the elevator was in excess of the contract price agreed upon.

The defendant also seeks to recover on a counterclaim for $9.12.

The affidavits of the defendant on the motion to change the venue show that six witnesses, all of whom reside in the city of' Newburgh, county of Orange, are riecessary and material witnesses for the defendant, and that he cannot safely proceed to-trial without their testimony, and from the statements made in the affidavit of the defendant as to the facts which he expects to prove by each and every of the witnesses named it can be readily*

p. 349

seen that they are material- and necessary witnesses for the defense in this action.

Plaintiff's affidavit shows that he had fourteen witnesses in New York city, Brooklyn and New Jersey.

Wm. G. Bussey, for app’lt; Wm. 0. Campbell, for resp’t.

In any view that can be taken in this matter the-evidence is not so preponderating as to require a reversal of the order.

In our opinion, however, the weight of evidence upon the issue. as to convenience of witnesses is in favor of defendant. It was a pure question of fact and upon the proofs submitted the decision of the court was right. It is a peculiarity of this class of motions that the party that has the last word generally requires a much larger number of witnesses and that when the case contesto a trial neither party calls the number of witnesses that he claims are necessary upon the motion to change venue.

It is the duty of the court to scrutinize the affidavits and consider all the facts and circumstances surrounding the transaction in order to determine whether a change of venue should be made. The ¡Tace where the contract was made or the subject matter of the action is located is an important element.

In this case the machine which is the subject of the action is in Orange county, and it appears that the manner in which it works is a material issue and can only be proved by witnesses in that county who have seen it in operation.

The order must be affirmed, with costs.

Dtkman, J., concurs.