
    John Thurfjell, Resp’t, v. Frank S. Witherbee et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    Venue—Change of fob convenience of witnesses—Affidavit.
    It is not sufficient that the papers on motion to change the place of trial for the convenience of witnesses state the facts which the moving-party expects to prove by the witnesses; hut it should he shown, either by the affidavits of the witnesses or otherwise, that the witnesses will testify to such facts, or have stated to the affiant that they will so testify, or that they were in a situation to have personal knowledge of such facts.
    Appeal from an order denying defendant’s motion to remove cause from the court of common pleas to the supreme court, and to change the place of trial on the ground of convenience of witnesses.
    
      Butler, Stillman & Hubbard (Henry H. Whitman, of counsel), for app’lts; J. Edward Swanstrom, for resp’t.
   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 thirteen 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 other 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 may be done by positive averments made by 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 twenty 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, twenty 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 ten dollars costs of the motion, and ten dollars costs and printing disbursements on this appeal. The costs to be paid, and the motion made, within thirty days after the entry and service of the order on this decision.

Van Brunt, P. J., Follett and Barrett, JJ., concur.  