p. 334Cornelius S. Bushnell, App’lt, v. William W. Durant, Resp’t.(Supreme Court, General Term, First Department,Filed December 14, 1894.)Headnote
1. Venue—Convenience of Witnesses.A change of venue will not he granted for the convenience of expert witnesses.
A statement in the affidavit that the party “ expects to prove certain facts by the witnesses named, is not sufficient.
E. R. Johnes, for app’lt; H. W. Simpson, for resp’t.
Appeal from an order changing the place of trial.
This action is brought to procure a judgment directing a reassignment of certain interests in a bond and two mortgages made by the Adirondacks Company to one Enoch H. Rosekrans, and secured by certain lands situated in the counties of Hamilton, Franklin, Saratoga, Essex, Herkimer, St. Lawrence, Jefferson, and others, in the state of New York, which interests, plaintiff alleges, were conveyed for a grossly inadequate price, because of certain fraudulent representations made by the defendant as to the value of the lands upon which the mortgages were a lien. The answer of the defendant is a general denial and the statute of limitations.
The defendant moved to change the place of trial on account of the convenience of witnesses. On this motion the defendant hac given the names of 7 expert witnesses selected by him, by whom, as he swears, “he expects to prove” the value of the lands upon which the mortgages in question were a lien. To offset what the defendant thus expects to prove, the plaintiff names 11 witnesses, 3 of whom he states were engaged in negotiations with the defendant in relation to Adirondack lands, the other 8 being claimed to be experts familiar with the value of the lands in question. It does not seem to us that expert witnesses are the witnesses whose convenience is to be consulted by changing the place of trial. They are usually paid for their services in addition to the ordinary witness’ fees, and therefore are presumed to be compensated for
p. 335The third defendant, Ferdinand Greenebaum, answered. The action is brought to recover judgment for the alleged breach of their inconvenience; besides, if the place of trial were to be changed because of the convenience of such witnesses, why might not a party name any number,—not only 6, but 60,—merely for the purpose of procuring an order of removal ? It appears that he defendant, though a resident of Hamilton county, has an office" in this city, where the transaction sought to be invalidated occurred, and where, besides the plaintiff, three other persons, stated to be the only other witnesses to the transaction, also reside. Although the plaintiff claims to have more expert witnesses than the defendant, if we assume the number on each side to be the same it would appear that the principal transaction took place, and all the witnesses acquainted with the facts reside in this city, except the defendant, and that he has an office here. Upon this showing, we think the court below erred in its conclusion, and that this general term has the right to correct such error. It will be noticed that, in regard to the expert witnesses, it is not stated, that they will testify as to the value ; the statement being that the' parties “ expect ” to prove by such witnesses the value of the-lands in question. This leaves the affidavits open to the criticism pointed out in the case of
Thurfjell v. Witherbee,
70 Hun 401 ; 54 St. Rep. 96 , where, in regard to similar affidavits used upon a. like motion, it was said: “This motion is founded and resisted upon great expectations.” Outside of the experts as the transaction occurred here, where all the witnesses to the transaction, except defendant, reside, and as the defendant has an office here, we think that these considerations should, upon the merits, determine the question in plaintiff’s favor. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.