Opinion
March 21, 1961
Appeal from an order of a Special Term, Supreme Court, Oneida County. In these actions for personal injuries arising from an automobile accident which occurred in Madison County, the venue was changed from Madison County where the plaintiffs instituted the actions, to Oneida County as a "proper" county. No party lives in Madison, but plaintiffs live in Oneida. Thereafter plaintiffs moved at the Madison Special Term to change the venue back to Madison County for the convenience of material witnesses; this motion has been granted; defendants appeal. The plaintiffs' moving affidavit lists the names of eight witnesses whose convenience would be promoted or affected by a trial in Madison, but the affidavit fails to disclose the elementary requirement of the rule, reiterated many times in many cases, that the testimony to be given must be disclosed to permit the court to determine for itself if the witness will actually be able to give material testimony. Defendants' affidavit in opposition, however, shows no witness, even by name or generalization, whose convenience would be promoted by a trial in Oneida, and in view of the disposition that is often made in such motions that the venue will be left in the county in which the cause arose if the convenience of witnesses is more or less evenly balanced, the discretion of the Special Term in this instance should be sustained. Order unanimously affirmed, without costs.