Opinion
September 22, 1961
Appeal from the Orleans Special Term.
Present — Williams, P.J., Goldman, McClusky and Henry, JJ.
Order unanimously reversed, with $25 costs and disbursements, and motion granted, without costs. Memorandum: The contract at issue was made in the County of Steuben and provided for its performance in that county. Defendant has shown that the convenience of material witnesses will be served by a trial in Steuben County whereas the affidavit of plaintiff's attorney which attempts to show that the convenience of other witnesses will be best served by a trial in Orleans County cannot be considered because it fails to meet the standard of proof required on a motion for change of venue. We believe that the ends of justice will be promoted and the convenience of witnesses served by changing the venue of this action to Steuben County and that Special Term's denial of defendant's motion was an improvident exercise of discretion.