Peet v. Billings

2 Wend. 282

• Court: New York Supreme Court
• Decided: May 15, 1829
• Status: Published

Opinion

By the Court, Sutherland, J.

The plaintiff’s affidavit discloses that all the witnesses of the plaintiff reside beyond the bounds of the state, and it is insisted by the defendants’ counsel that the convenience of such witnesses is not regarded by the court in their determinaton upon motions to change the venue. • Such undoubtedly is the sound construction of the rule by which the court is governed in questions of this kind. (4 Cowen, 532.) If the convenience of witnesses thus circumstanced is intended to be consulted, the party should examine them on commission. The court will not say, had the plaintiff stated that he had obtained the assurances of his witnesses that they would attend the Columbia circuit, but that they might have refused the motion; but as that is not stated, and the defendants have 4 witnesses residing in the county to which they apply to change the venue, the motion must prevail.

Mr. Bushnell asked to have the motion continued, go that the defect in the affidavit might be supplied, which application was refused, and the motion granted.