Fitzgerald v. Payn — 60 N.Y. St. Rep. 484

Majority

p. 484

James J. Fitzgerald et al., App’lts, v. Edgar M. Payn et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed May 8, 1894.)

Headnote

Venue—Convenience of witnesses.

Where a question of fact is presented by conflicting affidavits, a decision of the special term on a motion to change the place of trial, for convenience of witnesses, will not ordinarily be disturbed on appeal.

Appeal from an order changing the place of trial from Greene to Albany county.

James J. Fitzgerald, for app’lts; Worthington Frothingham, for resp’ts.

It was held by this general term in Lane v. Town of Hancock, 29 St. Rep. 635 ; 9 N. Y. Supp. 97 , that, on a motion to change the place of trial for the convenience of witnesses, the decision of the special term on a question .of fact presented by conflicting affidavits should not be, ordinarily, interfered with by the general term. In Henderson v. Jackson, 2 Sweeney, 603, it was also' held that the decision of a motion by a special term on conflicting evidence will not be disturbed by the appellate court on a disputed fact involved therein. In this case a question of fact was presented to the special term, as to whether two of the plaintiffs resided in the citjr of Hudson or in the county of Greene. That said defendants had, shortly before the commencement of the action, resided in Hudson was conceded. But the plaintiffs claim that before the commencement of the action, and in 1892, they had removed from the city of Hudson to Greene county.

The affidavits of the plaintiffs are not, satisfactory to me- What is meant hv stating therein that the said two defendants are residents of the count)? of Greene “according to the well-known construction of § 984 of the Code of Civil Procedure,"’ I am unable to determine. The statements in the, affidavits read by plaintiffs that said “firm after the making of the contract, moved to Ooxsackie,” closed up their business in Hudson, changed their address, transacted their business in Góxsackie, etc., does not show but that the members continued to reside at Hudson. The allegation in said affidavits that the defendants Michael and John lived in Ooxsackie, occupying a dwelling house there, and cultivated a farm of 45 acres in said town, may all be true, and yet the place of residence of said defendants may have never been changed from Hudson. It will be observed that the plaintiffs do not contradict the allegation in the moving affidavit that in November, 1893,

p. 485

long after they claim to have changed their residence, they caused themselves to be registered at Hudson, and voted there. This allegation, not being denied, must be assumed to be true. If, in fact, said defendants immediately before the commencement of the action, and in November, 1893, a long time after they claimed to have changed their residence, actually voted in the city of Hudson, it may be doubted whether they could be considered as residents of Greene county, “according to the well-known construction of § 984 of the Code of Civil Procedure,” or in any other view. Without, howoveT, discussing the affidavits, I think that a fair question was presented to the special term for its decision on conflicting affidavits, and that its holding should not be disturbed bv us under doctrines established by the authorities above cited, and kindred cases.

Mayham, P. J., concurs; Herrick, J., not acting.