99 N.Y.S. 558 | N.Y. App. Div. | 1906
The defendant appeals from an order denying a motion to change the place of trial of this action from the county of New York to the county of Oswego.
The plaintiffs seek to recover the sum of $2,190, as damages for the failure of the defendant to deliver goods which the former claim the latter contracted to sell to them. There are four causes of action set forth in the complaint, each being based upon a separate contract. The defendant admits in its answer that two contracts were made, but asserts that all the goods covered by such
The contracts were made at the defendant’s place of business at Pulaski, in Oswego county. The defendant’s affidavits are strictly in accordance with the requirements of law; the necessity of the testimony of the witnesses named by the defendant is shown ; the materiality of that testimony is made to appear; that the witnesses will testify to specific material facts is also stated and the advice of counsel to that effect is also sworn to. The only criticism relating to the merits of the defendant’s application is that the witnesses, or most of them, are in some way connected with the defendant as officers or employees. Three of such witnesses are not officers or employees of the defendant, and although the others are connected with it, there is no reason why their convenience should not be regarded, unless it plainly appears that the plaintiffs have witnesses residing in the city of Hew York whose convenience should also be considered.
The attempt was made by the plaintiffs to show that many witnesses are required to substantiate the plaintiffs’ cause of action, but the affidavits presented are fatally defective. It is stated that the plaintiffs will call as witnesses many merchants to prove their damages and to show the condition of the market in Hew York. They do not give the names, addresses or occupations of individual witnesses, except three, but they mention twelve or more partnerships, without naming the particular members of any of such partnerships whose testimony is desired. The affidavit of Alt-mark on behalf of the plaintiffs merely says that “ the plaintiffs hav
It is not stated that the plaintiffs are advised by counsel that the testimony of such witnesses is material and necessary, nor that the individuals named will swear to any material fact. It is the rule that the absence of such a statement as to the advice of counsel constitutes a fatal defect and cannot countervail allegations of the moving party. That was held by this court in Fish v. Fish (61 App. Div. 572).
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial to Oswego county should be granted, with ten dollars costs.
O’Brien, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.