This is an application to change the venue in a transitory action; special cause(a) ought, therefore, to be shown. We are of opinion that what has been done is not sufficient to take the case out of the general rule adopted with respect to suits of this nature. The defendant ought to have offered as much to change, as the opposite party would have been obliged to allege in order to retain.
Supposing, therefore, that to be the criterion, he [*123] ought to *show when the usury originated, and that the witnesses resided here; but the affidavit does not state when the usury took place, nor that the cause of action arose in Albany. For though the note is apparently made here, and payable at the Bank of Albany, *175■ it was negotiated in Bew-York, and the presumption is, it was made where it was passed. The doctrine now acted upon is established. 1 D. & E. 781.(a) It is necessary to show that the cause of action arose, and that material testimony is to be given in the place where the venue is to be removed. The defendant, therefore, can take nothing by his motion.
Motion denied.(b)
Radcliff and Livingston, Justices, absent.
Jenkins ads. Union Turnpike Company, Caines’ Prac. 126. Sayer and Hurd v. Brevoort, id. ibid. Slosson ads. Wheaton, Col. Cas. 121. Baker v. Sleight, 2 Caines’ Rep. 46. Gibbs ads. Scott, Col. Cas. 12Í.
Foster v. Taylor.
In transitory actions, the courts are not disposed to take from the plaintiff his right of electing the venue; Holcroft v. Colwest.; Andr. 65, therefore, on an award day it has been refused; Whitburn v. Staines, 2 Bos. and Pull. 355, yet on a promissory note it may be changed; Kirk v. Broad, Say. 7, especially if some serious inconvenience will arise from denying the application. Evans v. Weaver, 1 Bos. and Pull. 20. But in the C. P. engaging to give evidence on a count on a promissory note, in the county where the venue was laid, has been held a sufficient cause for denying a change. Duke of Bedford v. Bray, Barnes, 491. Downes v. Brian, 2 Black. 993. See ante, p. 4, n. (a).