Opinion
October, 1926.
Order denying motion to change place of trial reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The affidavit filed by the plaintiff herein fails to allege that the plaintiff had stated to his counsel the facts which he expected to prove by the witnesses named in the affidavit. It also fails to state that his counsel advised him that these witnesses were necessary and material and that without the testimony of each and every one of them they could not safely proceed to the trial of the action. These are not only essential elements in an affidavit on which to base a motion for a change of the place of trial, but they are also necessary in the affidavits opposing such a motion. The decisions of the courts cannot be based upon the opinion of one, not an attorney, as to the necessity or materiality of the evidence. As these essential elements are not contained in the affidavits opposing this motion the motion should have been granted. ( Rieger v. Pulaski Glove Co., 114 A D 174; Schwartz v. Wilbur, 211 id. 806; Sinnit v. Cambridge Valley Agr. Soc., 27 Misc. 586, opinion by Chase, J.; Chapin v. Overin, 72 Hun, 514.) The papers opposing the motion are further defective in that they fail to state any facts to show that the witnesses named by defendant will testify as the affiant assumes they will. Kelly, P.J., Jaycox, Manning, Young and Lazansky, JJ., concur.