Schmidt v. Rochester Lithographic & Printing Co. — 31 N.Y. St. Rep. 258

Majority

p. 258

Konrad Schmidt et al., App’lts, v. The Rochester Lithographic & Printing Co., Resp’t.

(Supreme Court, General Term, First Department,

Filed March 28, 1890.)

Headnote

Venue—Change eor convenience oe witnesses.

The decision of special term on a motion to change the place of trial for the convenience of witnesses will not be disturbed unless it clearly appears that the court below erred in coming to the conclusion which it did.

Appeal from order changing place of trial from New York county to Monroe county for the convenience of witnesses.

Douglas & Minton, for app’lts; W. M. Jones, for resp’t.

In this class of cases it is exceedingly difficult to determine as to whether justice is done by changing the place of trial or not.

It is urged upon the part of the appellant that some of the witnesses who are sworn to upon the part of the defendant are not at all necessary and cannot be examined upon the trial of this action.

In respect to two of these witnesses this criticism seems to be correct, because it is stated that they will be required for the purpose of proving the contract, which it clearly appears was made by correspondence.and in respect to the terms of which there is no question. But in respect to the other witnesses sworn to, the fact that they are necessary and material witnesses does not seem to be successfully questioned. But it is alleged that two are residents of Canada, viz.: the city of Toronto, and that their convenience will not be considered upon a motion of this nature, leaving but seven witnesses upon the part of the defendant. It is urged that these seven witnesses are to give cumulative testimony and that therefore they are not necessary.

p. 259

In view of the fact that the same criticism can be passes upon the proposed testimony of some of the witnesses for the plaintiff we do not think that this consideration is entitled to much weight.

The witnesses suggested upon the part of the defendant seem to have borne different relations to the subject matter and would give testimony of a different character, and upon the whole case we cannot see that the court below erred in coming to the conclusion which it did, although perhaps if it had arrived at a different conclusion we should also have affirmed the order.

The order should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.