Maynard v. Chase

8 N.Y.S. 746, 30 N.Y. St. Rep. 348, 55 Hun 610, 1890 N.Y. Misc. LEXIS 1753

• Court: New York Supreme Court
• Decided: February 10, 1890
• Status: Published

Opinion

Pratt, J.

In any view that can be taken in this matter, the evidence is not so preponderating as to require a reversal of the order. In our opinion, however, the weight of evidence upon the issue as to convenience of witnesses is in favor of defendant. It was a pure question of fact, and upon the proofs submitted the decision of the court was right. It is a peculiarity of this class of motions that the party that has the last word generally requires a much larger number of witnesses, and that when the case comes to a trial neither party call the number of witnesses that he claims are necessary upon the motion to change venue. It is the duty of the court to scrutinize the affidavits, and consider all the facts and circumstances surrounding the transaction, in order to determine whether a change of venue should be made. The place where the contract was made, or the subject-matter of the action is located, is an important element. In this case, the machine which is the subject of the action is in Orange county; and it appears that the manner in which it works is a material issue, and can only be proved by witnesses in that county, who have seen it in operation. The order must be affirmed, with costs.

All concur.