Goodrich v. Vanderbilt & Drew

C. L. Allen, Justice. The 45th rule of this court provides,, that “ in addition to what has usually been stated in affidavits concerning venue, either party may state the nature of the controversy and show how his witnesses are material, and may also-show where the cause of action or the defence, or both of them arose; and, these facts will be taken into consideration by the court in fixing the place of trial.” It is in reference to this rule that both parties have endeavored to shape their affidavits in support and resistance of this motion. I have carefully looked info these affidavits, and also into the pleadings, copies of which have been submitted by the parties, and I am unhesitatingly drawn to the conclusion that the place of trial should be changed. It is perfectly clear that the contract upon which this action is: founded, and all the transactions relating to it, occurred in the city of New York, at the office of the transportation line of the defendants, called the Vanderbilt line. About this there is no dispute. The plaintiff alleges it in his complaint and it is admitted and claimed to be so by the defendants. The circumstances occurring after the purchase of the tickets, and which form the subject matter of the action, all happened in that city, and on the voyage and transporta! ion from there to San Juan del Norte to San Juan del Sur and hack to New York, on boaid the ships of defendants or those of the Accessory Transit Co. anti during the transportation of plaintiff from San Juan del Norte to San Juan del Sur. It has been repeatedly decided that the place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, unless the preponderance of witnesses is so great, as to warrant the court to retain the place of trial in another county. It manifestly appeals that many facts and circumstances, which transpiied in New York and on the voyages, must be given in evidence on the ti ial. Indeed most of the facts to be established happened at a great distance fiom St. Lawrence county, and I can perceive no testimony very material to show by witnesses exclusively from that county except the allegation in the complaint, of the condition ol the plaintiff'when he started for California, and his l • ms.anees al that time. I he plaintiff has shown by his affidavit that he has five more [473] witnesses than the defendants, who reside in the county of St. Lawrence and its vicinity. It must he remembered, however, that he does not state that he will be unable to prove the tacts, or any of them, which he expects to establish by their testimony, by any other witnesses residing in New York or its vicinity. It is more than probable that he can establish most of them more fully, particularly as to the unhealthiness of the climate on the isthmus, and the rate of wages in California, by witnesses residing there, than by those residing in the county of St. Lawrence. Nor can I discover that he will need all or nearly all of the witnesses whom he names,«to prove each of the particular facts to which he claims they will testify. For instance, the seven first witnesses were all present, as he states, in the office when the contract was made, and each of them distinctly recollects all that was said on that occasion. That only two other persons besides himself were present, and these were Allen and Rentoul, the two clerks of defendants. Can it be urged that he will need all those seven witnesses to prove that contract? Or will not any one, or two of them at farthest, he sufficient for that purpose? If it be said the defendants have sworn that five or six other persons were present and witnessed the transaction, and that they will be sworn as witnesses for defendants and that plaintiff will consequently need the whole seven'on his part, then he is incorrect in stating that but two others were present, and if they were all present, then their number balances the plaintiffs number on that point. Lt is to be remarked too, here, that these seven witnesses are each of them plaintiffs in an action against these same defendants, growing out of the same transaction, which actions are all at issue, and in all of which motions are made to changfe the place of trial, and in which these seven witnesses are named as material in every action except the one in which they are plaintiffs; and it is said that they are necessary to prove all the other facts on which the plaintiff relies for a recovery, as they accompanied him throughout the whole adventure until his return, to New York. Be it so; will they all be needed to prove the same facts, many of which can be established by other witnesses, residing in New York or its vicinity, and others of which are not disputed by the pleadings? [474] Again: the eleven witnesses severally named by plaintiff are represented as being acquainted with the climate and unhealthy exposure to which persons detained on the isthmus of Nicaragua are exposed, and the state of businesss and rate of wages in California. How is it probable that these eleven witnesses will all be needed to prove those facts? In the first place, I do not understand it to be pretended by the answer, that the climate on the isthmus of Nicaragua is not as detailed in the plaintiff’s affidavit, and that persons detained there are not subjected to exposure by such detention; that if it were denied, the seven witnesses first named who were with plaintiff at the'time, are most competent to prove the dangers to which he was exposed, and any witnesses of either plaintiff or defendant, could not fail to establish a fact, about which there seems to be no dispute. So any two witnesses could prove the state of business and rate of wages at California, at the time plaintiff sought to go there, if it should be deemed proper and material to prove that fact on the trial. It appears to me that the testimony of all these eleven witnesses, or at least the most of them will not be necessary for the plaintiff. The witness Jackman, also, can only prove what the seven first witnesses, or any of them can establish. Then, as to the eight witnesses,who are intimately acquainted with the circumstances of plaintiff’s condition and circumstances when he left for California, and when he returned. It can not be, that they will all be necessary for that purpose; the seven first witnesses know, probably, the same facts; and if they do not, two of the eight will be amply sufficient to prove the facts sought to be established by that class of witnesses. The plaintiff, I am satisfied, will not have occasion to call on the trial one-half of the witnesses he has named. On the other hand, I have looked at the affidavits of the defendants, and though as to some of their witnesses, the same remarks are applicable as to those of the plaintiff; yet I can not perceive why they (defendants) will not be obliged to call the greater part of the witnesses named by,them. The plaintiff has attempted to explain some of the statements in defendants’ affidavit, and objects that it is not deposed that the witnesses are acquainted with the facts, which they are expected to prove. J [475] think the criticism is over nice. The defendants show as well as the plaintiff, that Allen and Rentoul were present when the contract was made, and must know the facts concerning and connected with it. As to the other witnesses, the affidavit states their particular situation and the relations in which they severally stood, during the occurrence of the circumstances, and that they are material and necessary to prove the particular facts to which they will be called. How could they prove or testify to these facts, unless they possessed a knowledge of them, by being present at the time of their occurrence? or unless they were cognizant of them from their situation as agent, purser, officer or hands on board the ships of the defendants? It appears to me the affidavit is sufficient for the purpose intended. The plaintiff has attempted to get rid of fifteen of the defendants’ witnesses by swearing that he has stated to his counsel the facts to which he believes each of them can testify, and that his counsel has advised him that their testimony can not be material or necessary for the defendants on the trial, and that he so believes. He undoubtedly swears to such belief in good faith; but it is not to be supposed that he can know all the facts which the defendants expect to prove, or that will be proved by their witnesses. They have probably not disclosed to him their testimony. It is sufficient that they have done so to their own counsel, and that he has advised them as to its necessity. The defendants could, probably, make a similar affidavit as to many of the plaintiff’s witnesses, and make it in as good faith, as the plaintiff has sw-orn to his statement, and yet the court would not undertake to say these witnesses wmuld not be material to the plaintiff Each party knows better than his adversary what facts he* can prove, or expects to prove by his several witnesses, and the court places reliance accordingly on the affidavits made by each. On the whole, without going into a further examination, lam satisfied, as before remarked, that the place of trial should be changed. The convenience of most of the witnesses will be best consulted by the change, which, with the fact that the cause of action originated in New York, seems to render the granting of the motion almost imperative 4 How. Pr. R. 84; 6 id. 6; 4 Hill, 68, 536; Rule 45; 3 How. Pr. R. 71). It was said that the [476] change of the place of trial to the city of New York would prove ruinous to the plaintiff, as he would be subject to the great delay and expense inseparable from trials in that city. This, no doubt, would prove a serious evil, though one which the court could not probably take into consideration. But as the defendants offered to stipulate that the place of trial might he changed to some one of the adjacent counties, an order must be entered changing the place of trial from the county of St. Lawrence to the city and county of New York, unless the plaintiff shall elect by notice in writing, to be served on defendants’ attorney in twenty days after service of notice of this order, to try the action in some one of the counties of Kings, Richmond, Westchester or Rockland; the costs of this motion to abide the event of the suit.