Smith v. Mack

Appeal from an order of the Albany special term, denying a motion made by defendant to change the place of trial from the county of Columbia to that of Albany.

■ The plaintiff insists that the defendant’s moving affidavit is fatally defective in omitting to state that the witnesses named are not only material, but also “necessary.” The part of the affidavit referred to, after stating the names and residences of each of the witnesses, is as follows: “ are each and every of them mate-

rial witnesses for this deponent on the trial of this cause, as he is advised by said counsel and verily believes; and that without the testimony of each and every of said witnesses deponent cannot safely proceed to the trial of this cause, as he is also advised by said counsel and verily believes.” Plaintiff’s contention is that the affidavit should have contained the words “ and necessary" between “material” and “witnesses.”

It will be seen that the form of the moving affidavit is the same as that set out in the note in Brittan v. Peabody, 4 Hill, 66 . In the form therein given the word “ necessary ” is not used. In the note in the same case ( 4 Hill, 65 ) the following doctrine is laid down: “ It mtist be shown moreover, that they are each and every of them material to the defense, or for the defendant, Anonymous, 1 Hill, 668 , as the defendant is advised by his coun

We think it appears from the above quotation and the authorities therein cited that on the motion to change the place of trial for the convenience of witnesses, while it is necessary to show the advice of counsel that the witnesses are material and necessary, if the affidavit states that each and every of the witnesses mentioned are material, and that without the testimony of each and every of them the moving party cannot safely proceed to trial, as he is advised by his counsel and believes, he does show that the witnesses are necessary as well as material.

The respondent also claims that the moving affidavit is defective in not alleging what information the affiant had which enabled him to state that the several persons named as necessary witnesses would testify to the facts as set forth in the affidavit. As the general term of this district, in Myers v. Village of Lansing-burgh, 54 Hun, 623 ; 28 St. Rep., 250 , has held that such an allegation is unnecessary, this objection need not be considered.

The action was brought to recover $1,888 from defendant as a stakeholder for wagers made with him in the city of Albany between November 1, 1891 and February 5, 1892. There were 214 different bets set out in the bill of particulars and all made in the city of Albany. We do not deem it necessary to discuss at length the affidavits of the parties read on the motion. But all the transactions set out in the pleadings occurred in the city of Albany, and from that fact, as well as from said affidavits, we think it appears that the convenience of witnesses will be promoted by a change of the place of trial from the county of Columbia to the county of Albany. The papers show a greater number of witnesses in the latter county. In such a case as this it is well settled that the place where the transactions between the parties occurred is an important element in determining where the trial shall be had. Maynard v. Chase, 30 St. Rep., 348 ; Trope v. Saratoga Association, etc., 36 id., 127, 128.

The order should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial granted, with ten dollars costs to abide the event.

Mayham, P. J., and Herrick, J., concur.