Austin v. Hinkley

13 How. Pr. 576

• Court: New York Supreme Court
• Decided: January 15, 1856
• Status: Published

Opinion

Paige, Justice.

The defendant swears to twenty-seven witnesses, residing in, and adjacent to the county of Clinton ; and the plaintiffs tó twenty-eight witnesses residing in the county of Washington. Both parties, in their respective affidavits, allege that their respective witnesses are necessary and male-rial on the trial.

As the plaintiff’s witnesses outnumber those of the defendant, the motion to change the place of trial must be denied.

This ground being sufficient to justify the denial of the motion, it is not necessary to pass upon the objections to the form of the defendant’s affidavit.

Where a party, in his affidavit, states the nature of the controversy, and shows how his witnesses are material, the affidavit may not be defective, although it does not conform literally to all the requirements of the former practice of the court.

The motion must be denied, without costs.

Under the old practice, no costs were allowed on motions to change the venue, unless the papers of the moving party were defective, in which case the motion was denied with costs. (4 John. 492.)