Majority
p. 731Michael Lageza, an Infant, by His Guardian ad Litem, Max Klimaschewitz, Respondent, v. Chelsea Fibre Mills, Appellant. Second Department, December 10, 1909.
Headnote
Venue — practice — non-residence of plaintiff in county where venue is laid.Where the plaintiff in a negligence action lays the venue in a county of which he is not a resident, the defendant is entitled as a matter of right to have the venue changed to the county of its residence irrespective of the convenience of witnesses.
Appeal by the defendant, Chelsea Fibre Mills, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 8th day of July, 1909, denying the defendant’s motion to change the place of "trial.
Eugene 11. Hawkins \Bertrand L. Pettigrew with him on the brief], for the appellant.
Harry 8. Austin, for the respondent.
This action for personal injuries through negligence was brought in the county of Queens. The defendant duly demanded that the place of trial be changed to the county of Hew York. As it appeared that the plaintiff had never been a resident of the county of Queens, but was a resident of the county of Kings when he began
p. 732
■his action, and that the defendant was a resident of New York county, the defendant was entitled to the change of venue as a matter of right. (Code Civ. Proc. § 984; Nichols N. Y. Pr. p. 1930, and authorities cited.) This absolute right could not be defeated .by a showing as to the convenience of witnesses» ( Veeder v. Baker, 83 N. Y. 156 ; Mills & Gibb v. Starin, 119 App. Div. 336 ) After the change has been made, the jilaintiif may then avail himself of either of the 2d and 8d subdivisions of section 987 of the Code of Civil Procedure. (Authorities supra.)
The order must be reversed, with ten dollars costs and disbursements, and the motion must he granted, with costs.
Burr, Thomas, Rich and Miller, JJ., concurred.
Order reversed, with ten dollars costs and. disbursements,' and motion granted, with costs.
Cases cited
- Veeder v. Baker 83 N. Y. 156 p. 732