Tuska v. Wood — 62 N.Y. St. Rep. 403

Majority

p. 403

Alonzo L. Tuska, Resp’t, v. George B. Wood et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 12, 1894.)

Headnote

Venue—Change—Affidavit.

An affidavit to change the place of trial for the convenience of witnesses, which merely states that the affiant expects to prove certain facts by the witnesses named, is insufficient.

p. 404

Appeal from an order denying a motion to change the place of trial.

0. A. Andrews, for app’lts; Vincent Bosemon, for resp’t.

In view of the conflict as to the number of witnesses respectfully to be produced upon the trial, and the bearing that their testimony would have upon the issues, it cannot be said that, in determining that the convenience of witnesses would not be served by a change of place of trial, the judge at special term was guilty of a misuse of his discretion. Apart, however, from this, we think that the affidavits upon which the' motion itself was. based are clearly insufficient, within the case of Thurfjell v. Witherbee, 70 Hun, 401 , 402; 54 St. Rep. 96 , wherein it is said: “ Affidavits to change the place of trial, which state that the moving party can prove material facts by the persons named, are held to be sufficient; but affidavits stating that the moving party ‘ expects’ to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated. This may be done by positive averments made by the party, or by affidavits of the proposed .witnesses.”

The order appealed from is therefore affirmed, with f 10 costs and disbursements.