Dunn v. Lewis — 47 N.Y. St. Rep. 312

Majority

p. 312

Charles A. Dunn, App’lt, v. George H. Lewis, Resp’t.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

Venue—Change oe.

Where the claim that plaintiff is a resident of the county where the action is brought is supported only by his own affidavit, which states a conclusion and not facts, and it appears that the convenience of witnesses will be promoted by changing the venue to the county in which the principal transactions took place, such change should be granted.

Appeal from order changing the place of trial from the county of New York to the county of Erie

The principal transactions involved in the litigation took place in Brie county.

W. F. Kip, for app’lt; Porter Norton, for resp’t.

—We see no reason for interfering with the order made by the court below.

. The claim that the plaintiff is a resident of the county of New York is unsupported by any evidence except his own affidavit, which states a conclusion and not facts, and which does not by any means meet the allegations contained in the moving affidavits.

Furthermore, the granting of the motion seems to have been justified upon the ground of the convenience of witnesses. The affidavits upon the part of the defendant show the necessity for the examination of a number of witnesses who are necessary and material to the defense. The answering affidavits upon the part of the plaintiff show that there has been, as is usual in cases of this kind, a decidedly unnecessary multiplication of the number of witnesses which it is claimed it is necessary to be examined.

Under all the circumstances of the case we think that the county of Brie was the proper forum in which the action should be tried; and that, therefore, the court below was correct in granting the motion.

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

O’Brien, J., concurs.