
    (70 Hun, 401.)
    THURFJELL v. WITHERBEE et al.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    Chanos oe Venue—Convenience oe Witnesses.
    An affidavit to change the place of trial for convenience of witnesses is not sufficient where it merely states that affiant expects to prove certain facts by the witnesses named, but does not state affirmatively that such witnesses will testify to the facts, or that they had stated to affiant that they would so testify, or that they were in a position to have personal knowledge of such facts.
    Appeal from special term, Hew York county.
    Action by John Thurfjell against Frank S. Witherbee, Walter O Witherbee, George D. Sherman, and George R. Sherman. From an order denying defendants’ motion, made pursuant to Code Civil Proc. § 269, to remove the action from the court of common pleas into this court, and change the place of trial from the city and county of Hew York to the county of Essex, defendants appeal.
    Modified.
    Argued before YAH BRUNT, P. J., and FOLLETT and BARRETT, JJ.
    
      Butler, Stillman & Hubbard, (Henry H. Whitman, of counsel,) for appellants.
    
      3. Edward Swanstrom, for respondent.
   PER CURIAM.

This motion is founded and resisted on great expectations. Fifteen persons are named in the moving papers as necessary and material witnesses for the defendants on the trial of this action. Then follow statements of facts which defendants expect to prove by 13 of the persons named, but there is no statement that defendants can prove any of the facts by any of the persons mentioned. The statement in respect to all of the witnesses is:

“That your petitioners expect to prove the following facts by said witnesses, to wit: * * * By Gilbert Barnaby and Peter Carlson, and each of them, that they were at work in said mine on the day in question, and saw said accident, and how the same occurred; the size and character of the rock that fell, and the exact place in the roof from which it came; that, at the time said plaintiff was injured, each of them were standing within a few feet of said plaintiff.”

It is not stated that these witnesses will testify to those facts, nor is it affirmatively stated that they were at work in the mine at the time of the accident. The statement is that the defendants expect to prove that they were. Had it been stated that these persons were at work in the mine, and saw the accident, or that they were in a situation to have personal knowledge of the facts, or that they had stated to the affiant that they would testify to such facts, a better ground for the motion would have been disclosed. The same criticism is applicable to the statements made, respectively, as to the necessity of calling as witnesses the orhor persons named. Affidavits to change the place of trial, which state that the moving party can prove material facts by the persons named, are held to be sufficient; but affidavits stating that the moving party expects to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated. This maybe done by positive averments made bv the party, or by affidavits of the proposed witnesses. The plaintiff's opposing affidavits are subject to the same criticism. He expects to prove divers relevant facts by 20 persons who are named, but fails to state that he can prove such facts by any one of them. It would be almost impossible to convict an affiant of perjury upon such an affidavit, though false. It is important for the litigants and the witnesses that this action should be tried in the proper county, which, presumptively, is the county in which the cause of action arose. The statement that, within a year from the time of the accident, 20 persons, who are material witnesses, are residents of a county 300 miles from the scene of the accident, without an explanation as to how it happened, taxes the credulity of the court. The order should be modified by granting the defendants leave to make a new motion, on fresh papers, on the payment of $10 costs of the motion, and $10 costs and printing disbursements on this appeal. The costs to be paid, and the motion made, within 30 days after the entry and sendee of the order on this decision.  