Theodore F. Kalbfleisch, Respondent, v. Jonathan T. Rider, Appellant

Theodore F. Kalbfleisch, Respondent, v. Jonathan T. Rider, Appellant. Third Department, June 25, 1907. Venue — change of place of trial — sufficiency of affidavit. On a motion to change the place of trial for convenience of witnesses the moving party is not compelled to disclose the ground of his expectation that the witnesses will testify to the material facts claimed, though a failure to disclose the grounds-may he considered in determining the motion upon the merits. When the moving party swears to the facts which “he will prove hy the said witnesses on the trial of this cause,” the affidavit is sufficient to require the court to consider the application on its merits. Appeal by the defendant, Jonathan T. Eider, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Warren on the 19tli day of March, 1907, denying the defendant’s motion to change the place of trial from the county of Warren to the county of Columbia, William W Chace, for the appellant. George S. Raley, for the respondent. [MAJORITY — ‘ Smith, P. J.:] ‘ Smith, P. J.: The order recites the preliminary objection made to the hearing of the motion that the papers are. not sufficient under the rules of. this department to authorize the hearing of the motion upon ’ the ' merits. The motion was thereupon ■ denied, with leave to renew. It is apparent, therefore, that the motion was denied purely upon the ground that the defendant’s affidavit's were not sufficient to call the plaintiff to the argument of the merits of the motion. From the briefs it appears that the objection to the affidavits was that there was nothing therein to show what ground the defendant had for his expectation that 'tile witnesses who he claimed were material would swear to the . facts upon which they were claimed to be material. - It seems to have been held in this department that a party is not compelled to disclose the ground of his expectation that the witnesses would testify to the material facts claimed. (See Bell v. Whitehead Brothers Co., 5 App. Div. 556; Sinnit v. Cambridge Valley A. S. & S. B. Assn., 27 id. 318; Ballston Storage Co. v. Defeo, 67 id. 341.) It is held, however, that a failure to disclose the grounds of the party’s expectation may be considered in determining the motion upon the merits. ' Within this rule the affidavits presented by the defendant seem to be sufficient to call. upon the court to consider the merits of the motion. The defendant swears to the facts which “ he will prove by the said witnesses on the trial of this cause.” This seems to be somewhat stronger than the expression “ which he expects to prove.” In Ballston Storage Co. (supra) attention was called to the' allegation of the party that he can prove certain facts. This affidavit would seem to be as strong as the affidavits which were held sufficient in the cases cited. •The order should, therefore, be reversed,- with ten dollars .costs and disbursements, and the motion remitted to the Special Term for héaring upon the merits. AH concurred. Order reversed, with ten dollars costs- and disbursements, and motion remitted to Special Term for hearing upon the merits.