200 A.D. 734 | N.Y. App. Div. | 1922
This is an action brought to recover damages for unlawfully cutting timber on land situate in Lewis county. The plaintiff resides in Oneida county and brought the action in that county. The place of trial was changed to Lewis county upon the motion of the defendants upon the ground that such was the proper county under the Code of Civil Procedure, section 982. (See Johnson v. Millard, 199 App. Div. 73.) .Thereafter the plaintiff moved to change the place of trial to Oneida county for the convenience of witnesses. The motion was granted and this appeal is from the order granting the motion.
The affidavits filed by the defendants state that the defendants have six material and necessary witnesses who reside in Lewis county. The affidavit filed on behalf of the plaintiff recites that she has ten material and necessary witnesses who reside in Oneida
One of the witnesses named by the plaintiff is her husband, an agent who has had charge of the land in question. The memorandum filed at Special Term indicates that said witness was not considered on the decision of the motion. The affidavit filed on behalf of the plaintiff names four witnesses who reside in Oneida county and who, it states, know the land in question and the value of the timber. It is not stated what value those witnesses will place upon the timber which was cut. Two proposed witnesses who reside in Oneida county are said to be acquainted with the value of the timber but it is not stated that they know the premises in question. The affidavits do not state what value any of said witnesses, if called to testify, will place upon'the timber in question. The answer admits that certain timber was cut over the line by mistake and states that its value was not to exceed 1500. From all that appears from the affidavits filed in behalf of the plaintiff said witnesses will not testify, if called, that the value of the timber cut was more than that amount. Very likely some of the other witnesses named by the plaintiff are not material and necessary and some of the witnesses named by the defendants may not be necessary or very material.
In view of the fact that this is an action relating to real property located in Lewis county and the cause of action arose in that county we think the motion papers were insufficient to justify the order changing the place of trial.
All concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
