31 N.Y.S. 934 | N.Y. Sup. Ct. | 1894
This action was brought upon two promissory notes made by the defendants, payable to the order of E. Bennett & Son. It was alleged in the complaint that the notes were transferred by the payees before maturity to one John P. Johnson, a banker at Highland, Kan., for a valuable consideration and without notice, and by Johnson transferred to the plaintiff for value. The place of trial was laid in the county of Monroe. The answer of the defendants denied the execution and delivery of the notes, and alleged that they were without consideration, and were obtained from them by fraud and misrepresentation, and that Johnson did not purchase the notes before maturity, and did not pay value for them, and took them with notice of the fraud, and that the plaintiff obtained possession of the notes after they became due and payable. All the transactions relative to the alleged making and delivery of the notes took place in the county of Cattaraugus. The defendants, upon the pleadings and affidavit of the defendants, moved to change the place of trial to Cattaraugus county. The motion was denied, with $10 costs, to be paid by the defendants to the plaintiff, but with leave to the
“The said Fred E. Johnson, that at the time the said notes are alleged in the complaint herein to have belonged to and been owned by this plaintiff or the said John P. Johnson, they were owned by the said E. Bennett & Son, and were not in possession of either the said plaintiff or the said John P. Johnson.”
The counsel claims that Johnson is certainly shown to be a highly necessary and important witness for the defense. There is nothing that precedes or follows the clause above quoted which adds any strength to it. It wholly fails to show that he is a necessary witness. The motion was undoubtedly denied because of these radical tie
The appellants complain of the clause in the order imposing upon them $10 costs of the motion. (The costs upon such motions are sometimes made to abide the event of the action.) But the motion being denied for the reason that the moving papers were radically defective, the defendants were properly required to pay costs of the motion; especially so, as they were permitted to renew the motion upon new affidavits. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.