Pulaski v. Tryon

214 A.D. 822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1925
• Status: Published

Opinion

Order denying motion to change the place of trial from Richmond county to Ulster county reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In the action to recover damages for alleged assault and battery the moving papers of defendants are precise and accurate in the necessary averments for a change of venue. The answering affidavit of the plaintiff does not disclose the grounds upon which the plaintiff bases his expectation that the witnesses named by him "will testify to facts in his favor. The affidavit is, therefore, defective. (Lyman v. Gramercy Club, 28 App. Div. 30; Jacina v. Lemmi, 155 id. 397; Carvel Court Realty Co., Inc., v. Jonas, 195 id. 662.) Two of the plaintiff’s alleged witnesses are non-residents of the State of New York. The convenience of non-resident witnesses should not be considered on a motion to change the venue. (Bowles v. Rome, Watertown & O. R. R. Co., 38 Hun, 507.) Moreover, the addresses of the witnesses named in plaintiff’s affidavit seem in several cases to have been incorrect, for communications addressed to the witnesses by defendants’ attorney have been returned with notations such as “ Not Found,” and “ Not at add.” For all of these reasons, the witnesses shown to be material are about the same on each side; and as the place of the alleged assault is in Ulster county, and this is a transitory action, and there being no controlling reason to the contrary, the action should be tried in Ulster county. Kelly, P. J., Rich, Jaycox, Kelby and Kapper, JJ., concur.