Frances v. Graves

29 Misc. 656, 62 N.Y.S. 755

Opinion

Chester, J.

On this motion to change the place of trial from Rensselaer to Steuben county the defendant swears to the materiality of twenty-nine witnesses residing in the latter county, three in the adjoining county of Ontario and one in the adjoining county of Yates. The plaintiff shows that he has seventeen witnesses residing in Rensselaer county and three in the adjoining county of Albany who are material in support of his case upon the trial. The plaintiff also furnishes an affidavit of interviews with sixteen of the alleged witnesses for the defendant tending to show that they are not in fact material to the defendant’s case. As to eight or ten of the witnesses so interviewed, it is apparent that their materiality is questionable, but I do not thinlr this is so as to the others. This still leaves the defendant swearing to several more material witnesses than the plaintiff. More than this, all the transactions between the parties took place in Steuben county, and in cases where the witnesses are about equally divided, as here, that fact, under the authorities, should be given much weight in determining the place of trial. Adriance, Platt & Co. v. Coon, 15 App. Div. 92; Bell v. Whithead Brothers Co., 5 id. 555; Payne v. Eureka Electric Co., 88 Hun, 250; Smith v. Mack, 70 id. 517; Maynard v. Chase, 30 N. Y. St. Repr. 348; Peck v. Parker, 15 Wkly. Dig. 142.

It seems to me, therefore, that this motion must be -granted, with ten dollars costs, to abide the event.

Motion granted, with ten dollars costs, to abide event,