Sawyer v. Clark — 37 N.Y. St. Rep. 932

Majority

p. 932

Joseph Sawyer et al., App’lts, v. Otis G. Clark et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed April 17, 1891.)

Headnote

Tenue—Change of—'Affidavit.

An affidavit in opposition to a motion to change the place of trial for the convenience of witnesses stated that it would he necessary to examine four witnesses for plaintiffs and also the managers of three mercantile agencies to prove representations made by defendants which were repeated to plaintiffs, but did not disclose what the representations were, in what their falsity consisted nor that any communication had been made to counsel as to what the witnesses would be expected to testify to, and the only reference to counsel followed the statement that the witnesses were material and necessary. Held, that such affidavit was defective and presented no answer to the application to change the place of trial.

Appeal from an order changing the place of trial from the county of New York to the county of Bensselaer.

Henry L. London, for app’lts; Edward W. Douglas, for resp’ts.

The action is replevin for the recovery of the possession of twenty-four hundred and twenty-seven pounds of combed cotton yarn, style No. 12; twenty-four hundred and ninety pounds of cotton yarn, Jaeger 0., style No. 12, which had been manufactured into two hundred and ninety-six and one-sixth dozen shirts and drawers. The plaintiffs issued the necessary requisition to entitle them to the immediate possession of the property, and under which it is claimed to have been taken. But the defendants afterwards gave the necessary undertaking, under which

p. 933

the possession was returned to them. And by their answers they claim title to the property.

In support of the motion it was alleged that the yarn was purchased, and also manufactured, at Troy, and three witnesses are named whom it is expected will give evidence in support of these facts. And added to these are witnesses by whom the defendants expect to prove that the goods taken were manufactured from other yarn than that purchased from the plaintiffs. And still others are named whose evidence is to be relied upon to prove the transfer and mortgage upon the goods to the defendants.

In answer to the affidavits affirming these facts and naming these witnesses is the affidavit of Anthony 0. Brew, the plaintiffs' credit man, who swears to the necessity for the attendance of four different witnesses for the plaintiffs, and also that it will be necessary to examine the managers of three mercantile agencies to prove representations made to them, and that these representations were repeated to this affiant. The affidavit is extremely general in its statements, wholly failing to disclose what representations were made, further than they were false and fraudulent.

In what respect they were false has not been mentioned. Heither is it stated that any communication was made to counsel concerning what the witnesses would be expected to testify to. The only reference made to counsel follows the statement that each and every one of these witnesses will be necessary and material on the trial of this action for the purpose of making proof of the plaintiffs’ claim. And then this reference to counsel is added. And the addition is “ as deponent is informed by Abraham Grurber, counsel for the plaintiffs, and verily believes.”

This affidavit was in all important respects informal and defective. It failed to comply with the well established practice, and presented no answer to the application to change the place of trial. The order should, therefore, be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Lawrence, J., concur.