Opinion
December Term, 1901.
Frank Cooper, for the appellant.
Frank H. Brown, for the respondent.
The plaintiff seeks to recover eighty-five dollars and sixty-one cents upon the ground that the defendant is indebted to it in that amount for goods sold and delivered; and the venue of the action is laid in the county of Saratoga, where the plaintiff resides. The kind of goods sold is not disclosed by the papers before us. The answer sets up that such goods were sold to the defendant in Schenectady by the plaintiff's local agent there; that he has paid all but thirty dollars of such amount, and that said agent agreed to credit the defendant with such thirty dollars upon such amount in consideration that he, defendant, agreed to keep and not return, certain portions of such goods as damaged, spoiled and unmerchantable. Such is the issue as framed by the pleadings.
The defendant on his own affidavit moved to change the venue from Saratoga to Schenectady county, and, among other things, stated therein that his wife and three other witnesses, naming them, are necessary and material witnesses upon the trial, as he is advised by his counsel, to whom he has stated the case, and as he verily believes; and that without the testimony of each of them, he can not safely proceed to the trial of this action, as he is so advised and verily believes. He then states what he expects to, and can, prove by such witnesses, which is substantially that certain of such goods were in a bad and unsalable condition; that the attention of the plaintiff's agent was called to them, and that he agreed to give credit for the whole amount of the purchase price thereof in some instances, and in others to give credit for a part thereof.
If those witnesses will testify to such facts, evidently they are material upon the very issue in the case. The defendant swears distinctly that they will. It is not absolutely necessary in this department that he should state the reasons why he believes that they will so testify. ( Bell v. Whitehead Brothers Co., 5 App. Div. 557; Sinnit v. Cambridge Valley A.S. S.B. Assn., 27 id. 318.)
The defendant further swears that each of such witnesses resides in the county of Schenectady. It is objected that the occupation and the street and number of the residence of each witness should have been given. That rule applies only when it appears that the witness is a resident of a city. Evidently it cannot apply to a witness residing in a rural district where there are no streets and numbers; nor should it be enforced as to a small city like Schenectady, unless all the circumstances indicate bad faith and an attempt to evade, on the part of the moving party. Its omission is, I think, a matter to affect the discretion of the court, rather than a legal prohibition against granting the relief asked. The plaintiff produced no answering affidavit. The motion was heard upon the pleadings and the one affidavit of the defendant, and was denied, with ten dollars costs, and from such order this appeal is taken.
Evidently the decision must have proceeded upon the theory that the affidavit was insufficient to warrant the relief asked.
It does not appear that there are any witnesses whatever in Saratoga county. The whole transaction arose and ended in Schenectady county. It cannot be disputed but that the four witnesses claimed by the defendant reside in Schenectady county; and the defendant's affidavit, not being contradicted, is sufficient in law to show that each is a necessary and material witness upon the issue tendered by the answer.
Under such circumstances, it is clear that the action should be tried in the county which was the situs of the transaction, and where alone the witnesses resided. ( Thompson v. MacKinnon, 57 App. Div. 329.) And had the court below deemed the moving affidavit sufficient in form to establish the facts claimed in it, a change would probably have been ordered as a matter of course. We do not, therefore, interfere with the discretion of the Special Term in reversing such order. We merely hold that the affidavit was sufficient in form in the absence of an answering affidavit; and that being so, the facts which are established without any controversy require that the defendant's motion should have been granted.
The order is reversed, with ten dollars costs and disbursements, and the motion granted, with costs to the defendant to abide the event.
SMITH, EDWARDS and CHASE, JJ., concurred; HOUGHTON, J., not sitting.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to defendant to abide the event.