
    (29 Misc. Rep. 656.)
    FRANCES v. GRAVES.
    (Supreme Court, Special Term, Albany County.
    December, 1899.)
    Change of Venue—Witnesses.
    Where the county to which defendant moved to change the venue contained several more material witnesses than the county where the cause was pending, and was also the place where the transactions occurred, he was entitled to the change.
    Action by Charles E. Frances against Hart D. Graves. Motion to change the place of trial.
    Granted.
    Lewis E. Griffith, for plaintiff.
    James Flaherty, for defendant.
   CHESTER, J.

On this motion to change the place of trial from Rensselaer to Steuben county the defendant swears to the materiality of 29 witnesses residing’ in the latter county, 3 in the adjoining county of Ontario, and 1 in the adjoining county of Yates. The plaintiff shows that he has 17 witnesses residing in Rensselaer county and 3 in the adjoining county of Albany, who are material in support of his case upon the trial. The plaintiff also furnishes an affidavit of interviews with 16 of the alleged witnesses for the defendant, tending to show that they are not in fact material to the defendant’s case. As to 8 or 10 of the witnesses so interviewed, it is apparent that their materiality is questionable, but I do not think this is so as to the others. This still leaves the defendant swearing to several more material witnesses than the plaintiff. More than this, all the transactions between the parties took place in Steuben county; and in cases where the witnesses are about equally divided, as here, that fact, under the authorities, should be given much weight in determining the place of trial. Adriance, Platt & Co. v. Coon, 15 App. Div. 92, 44 N. Y. Supp. 288; Bell v. Whithead Bros. Co., 5 App. Div. 555, 39 N. Y. Supp. 434; Payne v. Electric Co., 88 Hun, 250, 34 N. Y. Supp. 657; Smith v. Mack, 70 Hun, 517, 24 N. Y. Supp. 131; Maynard v. Chase (Sup.) 8 N. Y. Supp. 746; Peck v. Parker, 15 Wkly. Dig. 142. It seems to me, therefore, that this motion must be granted, with §10 costs, to abide the event.

Motion granted, with §10 costs, to abide event.  