Majority
p. 225Wales Henry Dunham, Resp’t, v. Hartley H. Parmenter, App’lt. (Supreme Court, General Term, First Department, Filed December 15, 1893.)
Headnote
Venue—Convenience of witness.A change of venue to the county where the conversion took place will, in an action for the conversion of numerous chattels, be conditionally granted, where it appears that the greater number of witnesses resides in that county.
Appeal from an order denying a motion to change the venue for the convenience of witnesses.
Sheldon & Booth, for app’lt; J. George Flammer, for resp’t.
The transactions out of which the alleged cause of action arose all occurred in the county of Clinton. The defendant makes out a case for a change of place of trial. But the plaintiff testifies to six witnesses residing in the county of Hew
p. 226
York, whose evidence he regards as material to establish his. cause of action. Considering the nature of the action, the place where the transaction occurred, the possibility of an earlier trial, and the materiality of the testimony of the greater number of witnesses, we think the motion should have been granted, upon condition that the defendant stipulate that the evidence of the-witnesses residing in this city be taken, if the plaintiff so elects,.. by deposition, to be used on the trial with the same force and effect as though they were produced and sworn.
Order reversed and motion granted, provided the defendant gives the stipulation to take the testimony of the witnesses residing in New York county on deposition, without costs to either party. Upon failure to make the stipulation, the order is affirmed, with costs. _