Bell v. Whitehead Bros.

Herrick, J.: This is an appeal from an order denying a motion of the defendant to change the place of trial from the county of Greene to the county of Saratoga. The motion was made upon two grounds: Ewst, that the county of Saratoga was the proper county, and, second, for the convenience of witnesses. The complaint alleges that the plaintiff owned a quantity of moulding sand, situate in the town of Clifton Park, Saratoga county; that the defendant, by its officers, servants, agents and employees, wrongfully took a large quantity of such sand from where it lay and shipped it to New York city, and there sold it, and converted the proceeds to its own use and benefit, and asks damages from the defendant for such conversion. The answer consists of a denial and an allegation that the defendant is the owner of the sand, and, therefore, rightfully in possession of it. The áffidavits disclose that the plaintiff claims to have purchased, by written contract, of one Miller, the owner of a farm in Clifton Park, Saratoga county, “ all the moulding sand upon that parcel of land owned by said Miller, bounded on the south and west — 557 — by the farm of Granáis Yischer; ” that such parcel of land contained about thirteen acres. The defendant in the affidavits used in its behalf denies that any of the sand that it took was any portion of that sold by Miller to the plaintiff. It will be observed that the taking of the sand was in Saratoga county; both the parties swear to about an equal number of witnesses; all of the defendant’s witnesses are said to reside in the town of Clifton Park, Saratoga county, where the farm in question is situated; the plaintiff’s witnesses are alleged, some of them to reside in Greene county, some in Albany county and one on Long Island. Assuming for the purposes of this motion that the plaintiff’s witnesses who are not residents of Saratoga county are equal in number to those of the defendant who are residents therein, it seems to me that, in accordance with previous decisions of this court, the place of trial should be changed to the county of Saratoga, where the transactions took place which are the foundation for this action. (Murray v. Minier, 16 Wkly. Dig. 117; Zeller v. Powell, 17 id. 499; Maynard v. Chase, 30 N. Y. St. Repr. 348 ; Smith v. Mack, 70 Hun, 517.) The plaintiff, however, makes the objection that the defendant’3 moving affidavit is defective, in that it does not disclose upon what it founds its alleged expectation that the witnesses named by it will testify to the facts it alleges it expects to prove by them. The moving affidavit on the part of the defendant states what it expects to prove by each of the several persons named by it, but does not show any reason for such expectation, or any facts from which it can be inferred that such expectations are well founded, except as to certain witnesses whom it states were in the employ of the defendant, from whence it possibly might be inferred that they were the ones engaged in taking the sand in question, and knew where they took it from. The necessity of stating the reason or ground of the affiant’s expectation as to what the witnesses will testify to, has been held in the first department in Imgard v. Duffy (73 Hun, 255); Bushnell v. Durant (83 id. 32); Thurfjell v. Witherbee (70 id. 401); Tuska v. Wood (81 id. 79); and in the fifth department in Chapin v. Overin (72 id. 517); McPhail v. Ridout (83 id. 446); while — 558 — in the third department it has been held there is no necessity of the affiant’s alleging what information he has which enables him to state that the several witnesses named will testify to the facts set forth in the affidavit. (Myers v. Vill. of Lansingburgh, 54 Hun, 623; Smith v. Mack, 70 id. 517.) In the fourth department, in the case of Gilbert v. Shortsville Cart Co. (15 N. Y. Supp. 316), it is to be inferred from the prevailing opinion that, while the absence of a statement of the reason for the affiant’s expectations would not, perhaps, be regarded as a fatal defect, it would be considered as a circumstance in determining the merits of the motion. The defendant has conformed to the practice that has existed in its district for many years, and should not be defeated for following it now. The question is one of practice, and one which should be the same in all the departments of the State, but we do not feel prepared at present to depart from the rule that has heretofore prevailed in that portion of the present third department which constituted the former third department and now constitutes the major part of the present third department, yet we are inclined to think that while, perhaps, it is not a fatal defect to omit to state the grounds or reasons for the affiant’s expectation that the witnesses named by him will testify to the facts he alleges he expects to prove by them, still it is better practice to do so) and the failure of the affiant to make such statement may be taken into consideration by the court in passing upon the merits of the motion. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to abide the event of the action. All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event of the action.