Charles L. Wright, Resp’t, v. Henry E. Burritt et al., App’lts.(Supreme Court, General Term, Second Department,Where all the transactions out of which the cause of action arose were had and the witnesses who know the material facts live in a county other than that which is named as the place of trial, the venue should be changed to that county, and a denial of a motion therefor is not cured by requiring a stipulation that certain witnesses will testify as stated in the moving papers.
Appeal from order denying motion to change the place of trial from Kings county to the county of Cayuga.
Action to recover the amount of a check given by the Rhea-bottom & Teall Mfg. Co. to the plaintiff, drawn on defendants, who are bankers at Weedsport, IST. Y. Plaintiff alleges that a special deposit was made to meet this check; that defendants protested the check when presented, and returned it unpaid, and diverted the special deposit by crediting it upon them account against the said company. The answer denies the making of such special deposit and conversion of the same.
It appeared that the drawer was a domestic corporation, located at Weedsport; that Rheubottorn, its president, was the principal witness for plaintiff. The motion was made on the ground of convenience of witnesses, defendants claiming that seven witnesses named would testify to the bad character of Bheubottom.
The motion was denied on condition that plaintiff stipulate said witnesses would testify that the character of Bheubottom was bad, and that they would not believe him under oath.
Chester M. Elliott, for app’lts; William E. Stewart, for resp’t.
This is an appeal from an order denying a motion made by the defendants to change the place of trial from Kings county to the county of Cayuga, upon condition that the plaintiff make a stipulation respecting the testimony of certain witnesses named by the defendant in the moving papers.
The case is a Cayuga county case. íhe transactions out of which the cause of action arose were all there; all the persons who knew any of the material facts are naturally located there, and we think the moving papers made a casé requiring the removal of the cause to that county.
The court evidently hesitated over the denial of the motion absolutely, and required the plaintiff to stipulate that certain witnesses of the defendants would testify as the defendants stated they would in their moving papers. Such a stipulation, however, is a poor substitute for the actual presence and testimony of the witnesses before the jury, and the defendants might well hesitate to rely upon such a stipulation without producing the witnesses.
We think the defendants are entitled to an opportunity to try the cause in the usual way, and to have the trial in the county of Cayuga.