Hyperlawhypertext legal database Gilbert v. Shortsville Cart Co. 39 N.Y. St. Rep. 763

← Cases

Gilbert v. Shortsville Cart Co.

39 N.Y. St. Rep. 763 Court N.Y. Gen. Term Decision date 1891-07-07 English

Decision Majority — Hardin, P. J. · Concurring — Martin, J.

Contents
p. 763
George S. Gilbert, Resp’t, v. The Shortsville Cart Co., App’lt.
(Supreme Court, General Term, Fourth Department,
Filed July 7, 1891.)

Headnote

1. Venue—Change op.
The discretion of the court in granting or refusing a motion to change the place of trial on the ground of the convenience of witnesses will not be disturbed unless it clearly appears that it was improperly exercised.
2. Same.
The fact that the affidavit used on such motion does not set forth specifically the grounds relied upon to establish that the witnesses whose testimony is sought will testify as detailed in the affidavit may be considered in determining the merits of the motion.
Appeal from an order made at the Cortland special term denying motion to change venue from Cortland to Ontario county.
Action to recover for the alleged conversion of the tools used by the plaintiff as a mechanic alleged to be of the value of $125.
Francis L. Brown, for app’lt; Franklin Pierce, for resp’t.

—We think the order should be affirmed. In Carpenter v. Continental Insurance Company, 31 Hun, 78 , a somewhat similar case was under review. In that case the court said: “We certainly are unwilling generally to review the discretion exercised in a motion of this kind, thinking that the discretion of the special term is as good as that of the general term.” That case correctly states the rule which we have frequently followed.

In looking into the affidavits we find the appellant’s affidavit does not set forth specifically the grounds relied upon to establish that the witnesses, whose testimony is sought for the belief, will testify as detailed in the affidavit. This circumstance may be considered, among others, in determining the merits of the motion. Myers v. Village of Lansingburgh, 8 N.Y. Supp., 92 ; 28 N.Y. State Rep., 250.

The case in hand differs somewhat from Klienhans v. Whiting, 33 N. Y. State Rep., 956, in which case “all the matters in issue” arose in the county in which the venue was laid, and hence an order changing the venue from that county to another county was reversed. In the case in hand a demand and refusal took place in the county of Cortland, where the venue was laid, and where it remains under the order appealed from. We are not prepared to say that the discretion of the special term was improperly exercised or took the wrong direction. We therefore affirm its order.

Order affirmed, with ten dollars costs and disbursements.

—I think the plaintiff’s affidavits sufficiently stated the grounds for his belief that the witnesses named therein were material and necessaiy, and that the special term was justified in denying the plaintiff’s motion. I therefore concur in the conclusion of my brother Hardin that the order should be affirmed.

Merwin, J., concurs.