54 N.Y.S. 813 | N.Y. App. Div. | 1898
This is an appeal from an order denying a motion to change the place of trial, for the convenience of witnesses, from the county of New York to the county of Tompkins. We think the motion should have been granted. The' cause of action arose in Tompkins county, where the plaintiff’s assignor and all of defendant’s witnesses within this state reside. So far as appears from the papers used upon the motion, there is not a single witness that the plaintiff desires to call upon the trial residing in the county of New York. Indeed, it does not even appear that the plaintiff himself resides in that county. Under such circumstances, it being necessary for the-
Neither does the stipulation admit the facts sought to be established, by the impeaching witnesses named by the defendant. It is simply to the effect that were the witnesses specified “sitting as jurors, and Allen sworn as a witness, they would not give him full credit, and that they know his reputation in the community for truth and veracity, and it is bad.” This falls far short of admitting the fact that his reputation in the community for truth and veracity is bad.
Where a defendant is entitled to a change of venue to another county on the ground that the cause of action there arose, and that the witnesses knowing the material facts to be established there reside, it is ■error to deny the application because the opposing party stipulates that the witnesses named will testify upon the trial of the action to the facts claimed. To defeat such a motion, the stipulation must •go beyond this. It must be to the effect that the facts sought to be established by the witnesses will be admitted upon the trial. An admission that a witness will testify to a fact is of little or no value, because the party could not safely go to trial without calling the witness, inasmuch as the correctness of his statement would be determined by the court and jury in no small degree from his appearance upon the stand and the manner in which he gave his testimony. Wright v. Burritt (Sup.) 17 N. Y. Supp. 645; Cordas v. Morrison, 70 Hun, 99, 23 N. Y. Supp. 1076.
It appearing that the defendant’s witnesses in this state reside in Tompkins county, where the cause of action arose, and that the stipulation offered does not cover all the facts which it will be necessary for the defendant to establish upon the trial, and it not appearing
The order of the special term should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs to abide the event of the action. All concur.