Bank of St. Albans v. Knickerbacker

6 Wend. 541

Opinion

By the Court-,

Nelson, J.

I was disposed at first blush to deny this motion, the principle upon which the decisions in cases of this kind are made being the convenience of witnesses, and the plaintiffs having brought themselves within the exception suggested by Mr. Justice Sutherland, in Peet v. Billings & others, 2 Wendell, 282, they have obtained the assurances of their witnesses to attend at the place where the venue is laid ; but "in Canfield v. Lindley, 4 Cowen, 532, the court refused to retain the venue, although the plaintiff shewed a greater number of witnesses necessary on his part than had been sworn to by the defendant, solely on the ground that several of them resided out of the state, beyond the reach of the process of the court, and that a commission to examine them might ultimately be necessary. On consultation with my brethren, I find that this decision has been uniformly adhered to. ■ The motion therefore must be granted.