Majority
p. 950Walter H. Hooker and Louisa A. Ensign, Resp’ts, v. Henry D. Sandford and Howard C. Pearsall, App’lts. (Supreme Court, General Term, First Department, Filed December 29, 1890.)
Headnote
1. Venue—Convenience oe witnesses.A plaintiff should not be compelled to go to a distant county to prove his cause of action because defendant has interposed a counterclaim which will require witnesses who reside there.
2. Same—Affidavit.
In such a case an affidavit which does not specify that defendant expects to prove by the witnesses named the material facts set up in the counterclaim is insufficient.
Appeal from an order of the special term, denying defendant’s motion to change the place of trial.
The following is the opinion at special term :
Ingraham, J.—I have serious doubts about the good faith of the counterclaim set up in the answer, and I do not think that plaintiff should be compelled to go to Warren county to prove his cause of action because defendant has interposed a counterclaim which will require witnesses who reside there. Under all the circumstances I will deny the motion on plaintiff stipulating that the witnesses named in the affidavit may be examined before a referee in Warren county; the testimony so taken to be read on the trial.
George C. Coffin, for app’lts; Campbell & Murphy, for resp’ts.
The order appealed from might well be sustained upon the ground specified by the learned judge at special term.
p. 951
A careful perusal of the pleadings and affidavits has raised in my mind the same doubt as to the good faith of the defendants’ counterclaim which led to the denial of their motion. But there is an additional consideration which leads to the affirmance of the order and that is the failure of the defendant Sandford to specify in his affidavit that he expects to prove by the witnesses named the material facts set up in the counterclaim. He tells us, it is true, what he does expect to prove by these witnesses, but the specifications do not cover the gravamen of the alleged counterclaim. Certain witnesses may have heard the parties talking over their contract, but the crucial question is what the contract was and there is not a suggestion that any one of these witnesses heard the plaintiff, Hooker, promise to pay the defendants one-half the expense of running the defendants’ peddling wagons. The same lack of precision is found with regard to the other witnesses. The affiant fails to state what the defendants expect to prove by these witnesses as to the total cost of running the defendants’ peddling wagons or as to the amount paid for printing and sign painting.
For aught that appears there will simply be a conflict upon the trial between the parties as to the contract with no reasonable expectation on the defendants’ part that the witnesses named will support their testimony.
The order appealed from should be affirmed, with ten dollars costs and the usual disbursements.
Van Brunt, P. J., and Bartlett, J., concur.