Alper v. Ithaca Railway, Inc.

258 A.D. 934, 16 N.Y.S.2d 552, 1939 N.Y. App. Div. LEXIS 7636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1939
• Status: Published

Opinion

Order affirmed, without costs, with leave to the defendant to renew its motion upon proper papers. Memorandum: The complaint is indefinite as to the circumstances of the accident out of which this action arises. All that the complaint discloses is that there was a collision between defendant’s bus and a motor car belonging to and driven by the plaintiff Priva Alper. The complaint alleges negligence on the part of the defendant as the sole cause of the accident. The affidavits presented on this motion for change of place of trial from Erie county to Tompkins county, where the accident occurred, fail to show with any clarity what the defendant will be able to prove by the various witnesses which it names. While it shows that the witnesses were present soon after the accident occurred and saw the position of the cars and the marks on the pavement, it is not shown what the positions of the cars were or what were the character and location of the marks so that any inference favorable to the defendant can be drawn therefrom. The papers on such a motion as this must show definitely that the testimony of the witnesses will he material. (MacArthur Bros. Co. v. City of New York, 182 App. Div. 640; Carvel Court Realty Co., Inc., v. Jonas, 195 id. 662; Dairymen’s League Co-Operative Assn., Inc., v. Brundo, 131 Misc. 548; Rochester Quality Shoes v. Bartoli, 190 N. Y. Supp. 793.) All concur. (The order denies defendant’s motion to change the place of trial.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.