#### FITZGERALD et al. v. PAYN et al.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Change of Venue—Convenience of Witnesses—Conflicting Affidavits.

A decision of the special term on a motion to change the place of trial, for convenience of witnesses, will not ordinarily be disturbed on appeal where a question of fact was presented by conflicting affidavits.

Appeal from special term, Greene county.

Action by James J. Fitzgerald and others against Edgar M. Payn and another for breach of contract. From an order changing the place of trial from Greene county to Albany county, plaintiffs appeal. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

James J. Fitzgerald, for appellants.

Worthington Frothingham, for respondents.

*1034PUTNAM, J.

It was held by this general term in Lane v. Town of Hancock, 9 N. Y. Supp. 97, that, on a motion to change the place of trial for the convenience of witnesses, the decision of the special term on a question of fact presented by conflicting affidavits-should not be, ordinarily, interfered with by the general term. In Henderson v. Jackson, 2 Sweeny, 603, it was also held that the decision of a motion by a special term on conflicting evidence will not be disturbed by the appellate court on a disputed fact involved therein. In this case a question of fact was presented to the special term, as to whether two of the plaintiffs resided in the city of Hudson or in the county of Greene. That said defendants had, shortly before the commencement of the action, resided in Hudson was conceded. But the plaintiffs claim that before the commencement of the action, and in 1892, they had removed from the city of Hudson to Greene county.

The affidavits of the plaintiffs are not satisfactory to me. What is meant by stating therein that the said two defendants are residents of the county of Greene, “according to the well-known construction of section 984 of the Code of Civil Procedure,” I am unable to determine. The statements in the affidavits read by plaintiffs that said “firm after the making of the contract, moved to Coxsackie,” closed up their business in Hudson, changed their address,, transacted their business in Coxsackie, etc., does not show but that the members continued to reside at Hudson. The allegation in said affidavits that the defendants ' Michael and John lived in Coxsackie, occupying a dwelling house there, and cultivated a farm of 45 acres in said town, may all be true, and yet the place of residence of said defendants may have never been changed from Hudson. It will be observed that the plaintiffs do not contradict the allegation in the moving affidavit that in November, 1893, long after they claim to have changed their residence, they caused themselves to be registered at Hudson, and voted there. This allegation, not being denied, must be assumed to be true. If, in fact, said defendants immediately before the commencement of the action, and in November, 1893, a long time after they claimed to have changed their residences, actually voted in the city of Hudson, it may be doubted whether they could be considered as residents of Greene county, “according to the well-known construction of section 984 of the Code of Civil Procedure,” or in any other view. Without, however, discussing the affidavits, I think that a fair question was presented to the special term for its decision on conflicting affidavits, and that its holding should not be disturbed by us under doctrines established by the authorities above cited, and kindred cases.

MAYHAM, P. J., concurs. HERRICK, J., not acting.