p. 898Arthur C. Brady, Respondent, v. James Hogan and Antonio Di Genno, Appellants.Headnote
Practice — change of venue granted.' In an action for breach of contracts made and to be performed in the city of New York by parties engaged in business there, an assignee of one party who. resides ■ .in Rockland county, but-who is engaged-in business in New York, and who. is in the employ of .his assignor, is. not entitled to retain the venue in Rockland county. This, not on the ground of convenience of witnesses, but because the cause of action arose in New: York county.
Appeal by the defendants, James Hogan and another, from an' order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 29th day of October, 1906. , • -
Samuel J. Raw ok, for the appellants.
M. B. Patterson, for the respondent.
This is an appeal by the defendants from an order.denying their ' motion to. change the place of trial from Rockland county" to Hew ' Yoi’lc county. If the motion rested solely upon the convenience of the witnesses, we would-not disturb the decision of the Special Term. But the record presents other facts" which convince us that the motion should he granted. The action is for breach of" two contracts made in thé city of Hew York, to he performed there. . Those who made the contracts are engaged in business in the city of Hew'York. It does not appear where they reside. This plaintiff, the. .assignee of the claim, although a tona fide resident of Rockland county, is engaged in -business in the city of Hew York, and is in the employ of his said assignors, The defendants and all their- witnesses are residents of the said city of Hew York. The plaintiff only shows, in addition to his residence in Rockland county, that he proposes to call as a witness himself, another who resides in . Orange, H. J:., and three others whom, lie does not name, and whose . residence he does not specify, but for whom be says it will be more
p. 899convenient if they attend in Rockland, although he gives no reasons for the statement, save that 'they might he required to attend in Hew York for successive days until the cáse is reached, while the case can be stipulated for a day certain in Rockland. In
Navratil v.
Bohm (
26 App. Div. 460 ) the motion to change the place of trial from Queens to Hew York county was made under section 987 of the Code of Civil Procedure, and we held that the court, regarding the ends of justice, properly granted it, not upon the ground of the convenience of witnesses, but because it appeared that the cause of action arose in the latter county; that the defendant had resided. there for many years and the plaintiffs also resided there. The1 sole difference between the features which we thought were controlling in that case and the similar features of the case at bar is that residents of Hew York county have assigned their claims to a resident of Rockland county, who, however, is engaged in business in the city of Hew York and in the employ of his assignors.
The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Hirsohbbrg, P. J., Hooker, Gayror and Rich, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs..