Thompson v. MacKinnon

67 N.Y.S. 1106 | N.Y. App. Div. | 1901

Kellogg, J. :

The motion to resettle the order should have been granted. On the hearing of the motion to change the venue, affidavits were used showing on the part of plaintiffs the need of several witnesses, residing in the county where the action was laid, to establish the ♦sale and actual delivery of the merchandise mentioned in the com- * plaint to one Cardwell at Little Palls, .in Herkimer county. On presentation of such affidavits the defendant offered to prepare and ' ¡serve a written stipulation which would obviate the need of such .proof, and four days was given to defendant’s counsel in which to do so.

The stipulation was within the time given served and filed, but -no mention is made of it in the order, denying the motion to change the place of trial. This stipulation is a very important paper and ¡should have been taken into consideration in the disposition of that motion. It may have been ; if it was it should have been entered with the affidavits and recited in the order, so that the record might "be clear and perfected. There is no denial of the facts stated in the affidavit upon which the motion to resettle was based. These -facts must be taken as true and these clearly entitle the mover to a ■.resettlement. '

The order being so resettled, we have the whole case before us on ¡the appeal from the order denying the motion to change the venue from the county of Rensselaer to the county of Herkimer. From this record it appears that the plaintiffs dealt .directly with one Card- ■ well, a druggist in Little Falls; that they gave him credit; sold, billed, charged and shipped to him the merchandise mentioned in the complaint; that -Cardwell, proving to be insolvent and plaintiffs having subsequently . discovered that, because of some dealings between Cardwell and this defendant, they might establish their -claim against him as the real debtor, he is made defendant. No -other question is in the case other than the one question, did the ■transaction between Cardwell and this defendant create a liability -on defendant’s part to these plaintiffs ? All. the facts rélating to -and surrounding the transaction between Cardwell and the defendían t have their situs in Little Falls, Herkimer county. There are no witnesses on this sole issue in Rensselaer county. We cannot ¡.say that there are none in Herkimer county.. If it. becomes per- . missible to prove on the trial any extrinsic fact, any fact not embraced ■in the writings executed by the parties, any fact which may properly be proven in explanation of the writings or the practical interpretation of the writings by subsequent acts, it is obvious that witnesses •of such facts must be. looked for in Little Falls. It is impossible on ¡■such a motion to say that no- such witnesses will be required or will be permitted to testify. In such a case the situs of the transaction -ought to be the situs of the trial. Since everything else has been eliminated by the stipulation, and such was the state of the case when the motion to change the venue was made, it was error to refuse a change.

The order to resettle should be granted, with ten dollars costs of -this appeal, and the order refusing the change of venue should be reversed, with ten dollars costs and disbursements on this appeal, :and the order granted, with ten dollars costs to abide the event.

All concurred.

Order denying motion to resettle reversed, with ten dollars costs, .and motion to resettle granted, and order denying motion to change venue reversed, with ten dollars costs and disbursements, and motion to change venue granted, with ten dollars costs to abide event..