Schwartz v. Wilbur

211 A.D. 806 | N.Y. App. Div. | 1924

Order denying motion to change place of trial reversed upon the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The defendants show by proper affidavits that they have a number of material and necessary witnesses residing in Greene county, N. Y. They have stated the facts which they expect to prove by these witnesses to their attorney, and have been advised by him that they are necessary and material on the trial of this action. All of the transactions involved in this action occurred in Greene county. The farm which was the subject of the transactions is located in Greene county. The action is transitory in its nature, and all things being equal it should be tried where the transactions occurred. The affidavits presented on behalf of plaintiff do not allege that any witness will testify to any facts. They merely allege that the witnesses in question were present and saw and heard many of the acts complained of by plaintiff. It is not stated that their version of the facts will be favorable to plaintiff, and the advice of counsel as to the necessity or materiality of these witnesses is not shown. As to one of the witnesses it is stated that it will be necessary to call him to prove certain facts concerning dealings -with plaintiff and his brother Peter J. Karkheek. It is not shown, however, that these facts are either necessary, material or relevant to the issues involved in this action.

Kelly, P. J., Rich, Jaycox, Manning and Kelby, JJ., concur.