Smith v. Mack

Appeal from an order of tbe Albany Special Term denying a motion made by defendant to change tbe place of trial from tbe county of Columbia to that of Albany.

Tbe plaintiff insists that tbe 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 tbe affidavit referred to after stating tbe names and residences of each of tbe witnesses, is as follows : “ Are each and every of them material witnesses for this deponent on tbe trial of this cause, as be is advised by said counsel, and verily believes; and that without tbe testimony of each and every of said witnesses deponent cannot safely proceed to tbe trial of this cause, as be is also advised by said counsel, and verily believes.” Plaintiff’s contention is that tbe affidavit should have contained tbe words “ and necessary,” between “ material ” and “ witnesses.”

It will be seen that tbe form of tbe moving affidavit is tbe same as that set out in tbe note in Brittan v. Pedbody ( 4 Hill, 66 ). In tbe form therein given tbe word “ necessary ” is not used. In tbe note in tbe same case ( 4 Hill, 65 ), the following doctrine is laid down : “ It must be shown, moreover, that they are each and every of them material to tbe defense (or for tbe defendant) (Anonymous, 1 Hill, 668 ), as tbe defendant is advised by bis counsel, and verily believes. (Anonymous, 3 Wend. 425 ; Anonymous, 1 Co wen, 102.) They must appear to be necessary also, as well as material (Satterlee v. Groot, 6 Cowen, 33; see Young v. Scott, 3 Hill, 32 -35), and for

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. The Village of Lansingburgh ( 54 Hun, 623 ), 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 pronioted 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 N. Y. St. Repr. 348 ; Trope v. The Saratoga Association, etc., 36 id. 127, 128.)

The order should be reversed, with ten dollars costs and disburse

Mayham, P. J., and Herrick, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion to change the place of trial granted, with ten dollars costs to abide the event.