38 N.Y.S. 1030 | N.Y. App. Div. | 1896
This is an appeal from an order denying a motion to change the place of trial of the action from New York county to Broome county. The change of venue is asked for by the defendant for the convenience of witnesses. The court, at Special Term, denied the motion in view of the fact that the defendant did not produce the affidavit of any of the witnesses whom he alleges will be material and necessary to establish his defense in this action.
It is charged in the complaint that the defendant agreed to execute a bail bond to secure the discharge from prison of one Joseph Rheinstrom, in consideration of which the plaintiff agreed to execute and deliver to the defendant a bond of indemnity to save him from loss by reason of his becoming such bail, and as further consideration the plaintiff agreed to give $200 to the defendant to be divided between him and one Curtiss and one Hyat, and that the defendant agreed to execute the bail bond and have Joseph Rheinstrom released on bail as soon as the $200 were paid, and that it was further agreed that if the defendant was not accepted as bail by the magistrate that the $200 would be returned by the defendant to the plaintiff. The complaint further alleges that the $200 was paid in accordance with the understanding that the plaintiff executed and acknowledged a bond of indemnity, but that the defendant has not carried out his part of the contract and still retains the $200 and the indemnity bond, and this action is brought to recover that .amount.
It is apparent that the only issue between the parties to this action is as to the terms upon which, in December, 1895, the defendant agreed to become bail for Joseph Rheinstrom, and what was done under that agreement. The defendant says in his affidavit upon which the motion was based that there are eight material witnesses,
The objection is taken that the moving papers presented to the court are insufficient, in that they do not comply with the rule laid down in McPhail v. Ridout (83 Hun, 446) and in Thurfjell v. Witherbee (70 id. 401). In the latter case it was held, and it is unquestionably the rule, that affidavits to change the place of trial on the ground of convenience of witnesses must state that the moving party can prove the material facts by the persons named, and it is not enough for the moving party to say that he expects to prove such facts unless by the affidavits enough is shown to satisfy the court that there is a probability of the moving party proving the facts by the persons named as witnesses. The affidavit which was made the basis of this motion is not very concisely drawn, but it does appear that the defendant can prove by his witnesses what he alleges in his affidavit is within their knowledge, for it contains the following averment: “ That this defendant has conversed with the several witnesses herein named, and each and every witness has a vivid recollection of the different conversations had between this defendant and plaintiff, at the times herein mentioned, and each and every witness so named is prepared to give testimony on the trial of this action as herein set forth, and deponent avers that he can prove on the trial of this cause all of the material facts, as herein set forth, by each of the respective witnesses herein named.”
The affidavit was sufficient; the witnesses were shown to be material; the moving party disclosed his intention and ability to prove by them the material facts, and in an action for $200 the defendant should not be compelled to bring this large number of
The motion should have been granted, and the order appealed from should be reversed, with ten dollars costs, and the motion to change the venue granted, with ten dollars costs to abide the event.
Williams, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.
Order reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to abide event.