34 and every one of them is a material and necessary-35 witness for his defense on the trial of this cause, as he is advised by his said counsel and verily believes, and that without the testimony of each and every one of the said witnesses this defendant cannot safely proceed to the trial of this cause, as he is also advised by his said counsel and verily believes ;37 that said witnesses reside in the county of as follows: viz., J. L., who is a physician, E. F., in the town and J. K., in the at No. of street in the city of G. H., in the town of VII. That the facts which he expects to prove by said witnesses are as follows:39 [stating each, for instance, in an action 34 It must appear from the facts stated that each and every one of the witnesses is material and necessary, and that without the testimony of each and every one he cannot safely proceed to the trial of the cause. Car penter v. Continental Ins. Co., 31 Hun, 78. Stating that without the testimony of each of the witnesses the party could not safely proceed to trial, but omitting to add the words, and every one of them, has been held insufficient. Id. 35 It must appear that the witnesses are necessary as well as material. Smith v. Mack, 70 Hun, 517, 24 N. Y. Supp. 131. 36 The statement as to the advice of counsel is essential (Rieger v. Pulaski Glove Co., 114 App. Div. 174; Sinnit v. Camb. Vall. Soc., 27 Misc. 586, 58 N. Y. Supp. 238; Chapin v. Overin, 72 Hun, 514, 25 N. Y. Supp. 627), unless the affiant is himself a counsellor. Ackerman v. Delude, 29 Hun, 137. 37 The omission of this averment is a fatal defect. Chapin v. Overin, supra; Randerson r. White Star Towing Co., 26 Misc. 305, 56 N. Y. Supp. 1004: Carpenter v. Continental Ins. Co.. 31 Hun, 78; note 4, supra. 38 The affidavit should state the names of the witnesses residing in the county to which the defendant seeks to change the venue (Anonymous, 6 Cow. 389); and it must state the particular town or village of their respective residences. Rieger v. Pulaski Glove Co., 114 App. Div. 174. If they reside in a city, the street number must be given, and their occupa tions as well. Lyman v. Gramercy Club, 28 App. Div. 30, 50 N. Y. Supp. 1004. The place of trial will be determined by the county in which the witnesses reside, rather than by the distance which they will have to travel. Hull v. Hull, 1 Hill, 671; People v. Wright, 5 How. Pr. 23. Convenience of witnesses who are not employes of a party will be given the greater consideration. Hays r. Reynolds Felting Co., 112 App. Div. 487, 98 N. Y. Supp. 386. Convenience of witnesses who reside without the State, will not be consid ered. Osterhout v. Rabe, 39 App. Div. 413, 57 N. Y. Supp. 336; N. J. Zine Co. v. Blood, 8 Abb. Pr. 147; Bowles v. Rome, Watertown, etc., R. R. Co., 38 Hun, 507. For a general note on this subject of change of venue upon this ground, see 3 N. Y. Anno. Cas. 149. 39 The omission to specify the facts, which the defendant expects to prove by each of his witnesses, will render the affidavit insufficient. Very little reliance is placed by the courts upon a general allegation of the materiality of witnesses, unless it be shown wherein they are material. People v. Hayes, 7 How. Pr. 248. And the affidavit should state in detail the facts which the defendant expects to prove by each of the witnesses, naming them respectively, where there is any prob ability of any contest as to the convenience of witnesses. See Price v. Fort Edward Waterworks Co., 16 How. Pr. 51. on a note, as thus:] By E. F. the fact that the note mentioned in the complaint was made by this defendant without consideration, and for the accommodation of the payee therein named, and that that fact was known to the plaintiff at the time he received said note. By G. H. that the plaintiff discounted said note at a usurious rate of interest, as alleged in the answer herein. [And so on.] VIII. [Here state the grounds for expectation that the witnesses will testify as he alleges they will, as:] That deponent has personally interviewed each one of the above-named persons, and has been informed by each one of them that he knows the facts which deponent has alleged he will prove by him, and will so testify [or, otherwise; and may annex affidavits by the witnesses.]40 IX. [If order to show cause is asked, state reason, as thus:] That the next trial term of this court appointed to be held in the county of is on the day of next, and there is no Special Term at which an order to change the place of trial can be made in this action after the until the day of day of next, next. That no previous application FORM No. 1546. [Signature.] Order to show cause why place of trial should not be changed, with stay meanwhile.41 [Title of court and action.] On the annexed affidavit of the defendant, verified on the day of 19, and on the pleadings, let the plaintiff show cause at a Special Term of this court to be held at day of on the at o'clock in the 42 noon, Supp. 278: Rheinstrom r. Weir, 5 App. Div. 109, 38 N. Y. Supp. 1030; Schwarz v. Robbins, 58 App. Div. 336, 68 N. Y. Supp. 1001; Avery v. Allen, 78 App. Div. 540, 79 N. Y. Supp. 886. 41 N. Y. Code Civ. Pro., § 986; N. Y. Gen. Rule No. 48. 42 The motion must be made in the county designated by the summons and complaint (even though it was not the proper county), or in the same district, or an adjoining county. Bangs v. Selden, 13 How. Pr. 163. And see Vol. I, p. 101, etc. If an order to show cause is procured, it must be made returnable in the district. Court Rule No. 37. or as soon thereafter as counsel can be heard, why the place of trial of this action should not be changed from the county of to the county of ,43 and why the defendant should not have the costs of this motion, if opposed by plaintiff," and such other relief as may be just. And until the determination of this motion, let all proceedings on the part of the plaintiff be stayed, and particularly [specifying any proceedings, other than subpanaing witnesses, desired to be stayed45]. day of Service of this order and the papers on which it is granted, on or before the 19 shall be sufficient. [Authentication as in Form 818, p. 1173.] [Title of cause.] [Venue.] FORM No. 1547. Affidavit to oppose change.46 A. B., the plaintiff above named, being duly sworn, says: I. That he has fully and fairly stated to A. T., his counsel in this cause, who resides at in the county of the facts which he expects to prove by each and every one of the following witnesses, viz., J. L., who is a [physician and resides 48 See note 21 to Form 1544. 44 See note 20 to Form 1543. 4 By N. Y. Gen. Rule No. 48, an order to stay proceedings for the purpose of moving to change the place of trial, "shall not stay the plaintiff from taking any step, except subpœnaing witnesses for the trial. without a special clause to that effect." If 46 N. Y. Code Civ. Pro., § 986. defendant's motion is made to change from an improper to a proper county, it cannot be opposed for sake of impartial trial or the convenience of witnesses, but plaintiff must wait, and if the motion be granted, move in the other county, after issue, for a contrary change. See note 8 to Form 1539; Gifford v. Town of Gravesend, 8 Abb. N. C. 246. But the statute requires that not only the convenience of witnesses but the ends of justice, as well, will be promoted. The plaintiff may oppose the application on the second ground alone, as, by showing that an impartial trial cannot be had. See Tuomey v. Kingsford, 68 App. Div. 180, 74 N. Y. Supp. 13. Defendant's motion, founded on convenience of witnesses, cannot be defeated by counter affidavits contradicting his defense, for this would be to try the merits on affidavits. Wiggin v. Phelps, 10 Hun, 187. S. P., Becker v. Town of Cherry Creek, 77 Hun, 11, 28 N. Y. Supp. 279. But counter affidavits from the witnesses mentioned in defendant's affidavit, showing that they are ignorant of the matters to which defendant proposes to call them, or will testify in a different manner, are admissible. Lewis Co. v. Phoenix Cap Co., 115 App. Div. 188; Osterhout r. Rabe, 39 App. Div. 413, 57 N. Y. Supp. 336. Where convenience of witnesses is in question, the plaintiff's affidavit should be in form and substance similar to that required of a defendant. Fish . Fish, 61 App. Div. 572, 70 N. Y. Supp. 900; Onondaga County Bank v. Shepherd, 19 Wend. 10; Am. Exch. Bank v. Hill, 22 How. Pr. 29. The same rules govern the one that govern the other; as to which, see Form 1545, and notes. at No. street in the city of 468 C. D., who resides in the town of in the county of in said county, and E. F., G. H. [etc., naming them all], all of whom reside in the town of , in said county of ; and that they are, each and every one of them, material and necessary witnesses for this plaintiff on the trial of this cause, as he is advised by his said counsel, and verily believes; and that without the testimony of each and every one of said witnesses, this plaintiff cannot safely proceed to the trial of this cause, as he is also advised by his said counsel, and verily believes. II. That the facts which this plaintiff expects to prove by said witnesses are as follows: [state them in detail as to each witness, naming him, and showing his materiality, as in paragraph VII, Form 1545.] III. [As in paragraph VIII, Form 1545.] [State also place of transactions, etc.;47 may also show plaintiff's infirmity, and inability to bear expense.18] [May add stipulation to admit facts relied on by defendant.]* [Or may show that ends of justice will not be promoted by the change,19 congested condition of calendar of other county, etc.] [Jurat.] [Signature.] FORM No. 1548. Order changing place of trial,50 [Caption (court order) and recitals as in Form No. 820, p. 1174.] ORDERED, that the place of trial of this action be and hereby is changed from the county of to the county of 51 [may state ground if desired; see Vol. I, p. 229-and state any condition imposed, as:] upon condition the defendant within 46 See note 38 to Form 1545. 47 Cook v. Pendergast, 61 Cal. 72; N. Y. Gen. Rule No. 48. 48 Cromwell v. Romer, 18 Wkly. Dig. 440; Tuthill . L. I. R. R. Co., 75 Hun, 556, 26 N. Y. Supp. 1029; Fish . Fish, 61 App. Div. 572, 70 N. Y. Supp. 900. Compare Hedges . Bemis, 38 App. Div. 349, 56 N. Y. Supp. 566. 49 A stipulation to admit affidavits of the witnesses in evidence, or that they would so swear, will be ineffective. See Roberts r. Lansing, 60 App. Div. 81, 69 N. Y. Supp. 736; Rhodes t. Wheeler, 48 App. Div. 361, 63 N. Y. Supp. 177. The stipulation must be days stipulate that the evidence of the witnesses residing in the county of may be taken (if the plaintiff elects so to do) by deposition, to be used on the trial with the same force and effect as though they were produced and examined,52 with 53 dollars costs of this motion to defendant [to abide the event of this action]. Enter [signature of judge by initials of name and official title.] [Serve copy on plaintiff's attorney.5] FORM No. 1549. Order that cause in inferior local court of record be tried at trial term of the Supreme Court,56 in another county. At a Special Term [etc., as in Form 820, p. 1174]. On reading and filing the petition of Y. Z., verified the day of 19 [and the affidavits of 52 Conditions may be imposed upon granting the order, such as above suggested (Dunham v. Parmenter, 74 Hun, 559, 26 N. Y. Supp. 955; Fish v. Fish, 61 App. Div. 572, 70 N. Y. Supp. 900). But the court has no power to compel defendant to submit to a reference. Lewis Co. v. Phoenix Cap Co., 115 App. Div. 188; L'Amou reux v. Erie R. R. Co., 62 App. Div. 505, 71 N. Y. Supp. 70. 53 On this motion to change the place of trial, the costs are usually made to abide the event of the suit, whether the motion be granted or denied. Gidney v. Spelman, 6 Wend. 525; Norton v. Rich, 20 Johns. 475. But see Worthy v. Gilbert, 4 id. 492. But it may be otherwise where plaintiff has not complied with a demand under the Code. Hubbard v. National Protection Ins. Co., 11 How. Pr. 149. On granting a motion made after and notice of trial, payment of costs of preparing for trial up to the time of the stay will be imposed. Carpenter r. Watrous, 5 Wend. 102. As to costs in special cases, see Purdy r. Wardell, 10 id. 619; Donaldson v. Jackson, 9 id. 450. 54 Enter in the office of the clerk of the county from which the place of trial is changed. N. Y. Code Civ. Pro., § 989. Subsequent papers must be filed with the clerk of the court or county to which the change is made. N. Y. Gen. Rule No. 2. 55 Otherwise plaintiff may proceed as if the change had not been made. Root . Tayler, 18 Johns. 335; Keep v. Tyler, 4 Cow. 541. Mere notice of the order is not sufficient. Keep r. Tyler (above). 56 N. Y. Code Civ. Pro., § 218. For form of petition, etc., see next Article. |