HERRICK, J.:
The substantial and material acts alleged in the plaintiffs' complaint were committed, if at all, in the city of Binghamton, Broome county. The great majority of the witnesses upon the crucial points in the case evidently reside in the city of Binghamton.
A stipulation that the witnesses will swear to the facts as alleged in the affidavit of the moving party is not sufficient; the party is entitled to their presence upon the trial and to the benefit of their oral testimony, so that the court and jury may be better able to determine whether they are telling the truth or not.
An admission that witnesses will testify to certain facts is not an admission of the truth of such testimony, nor an admission of the facts themselves. ( Ingal v. Stoddard, 35 App. Div. 539, 541.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs of motion, to abide the event of the action.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs of motion, to abide the event of the action.