| N.Y. App. Div. | Jul 1, 1898
The order denying the motion to. change the place of trial recites the reading and filing of an affidavit “ by which it appears that defendant expects to prove certain facts by certain witnesses residing in Washington county, but discloses no source of information that such witnesses will swear to the facts therein stated.” No affidavit was read in opposition to the motion, but it was disposed of upon the ground above quoted. Failure to allege upon what the defendant founds his expectations that the witnesses named by him will testify to the facts' stated, is held in the first department to be a fatal defect in the moving papers, as we have heretofore pointed out in the case of Bell v. Whitehead Bros. Co. (5 A.D. 555" date_filed="1896-05-15" court="N.Y. App. Div." case_name="Bell v. Whitehead Bros.">5 App. Div. 555); but we also held in the same case that such rule did not prevail in the third department, but that the failure to make such statement might be taken into consideration in passing upon the merits of the motion. " This motion was heard in the third, and not in the first department, and the failure of the defendant to state the source of his information or expectation was not taken into, consideration in passing upon the merits of the motion, because the merits were not passed upon by the court.
The order should, therefore, be reversed, with ten dollars costs and disbursements of this appeal, and the motion remitted to the Special Term to be considered upon the merits.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion remitted to the Special Term to be considered upon the merits.