Fluckiger v. Haber — 144 A.D. 65

Majority

p. 65

Mary Fluckiger, Respondent, v. Christopher Haber and Cornell Steamboat Company, Appellants.

First Department,

April 7, 1911.

Headnote

Venue — action for negligence —change of venue.

The venue"of an action to recover damages for personal injuries caused by negligence should be changed to the county where the accident occurred, and where the defendants and the greater number of witnesses reside.. '

Appeal by the defendants, Christopher Haber and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1911, denying the defendants’ motion to change the place of trial.

Amos Van Etten, for the appellants.

Frank M. Van Wagonen, for the respondent.

In May, 1910, the plaintiff was a passenger on a steam yacht on Rondout creek, Ulster county, which was owned by the

p. 66

defendant Haber. The yacht landed at a dock owned by the Cornell Steamboat Company for the purpose of letting the plaintiff and others go ashore. After the plaintiff had left the yacht, and while walking upon the dock she stepped into a hole and sustained personal injuries, and to recover the damages alleged to have been sustained by reason thereof, she brought this action—the venue being laid in the county of New York. The theory upon which a recovery is sought is that the injuries were caused by the negligence .of both defendants;— Haber in landing at the dock in question and the steamboat company in failing to maintain it in a'safe condition.

After issue had been joined the defendants moved to. change the place of trial from the county of New York to the county of Ulster for the convenience of witnesses. The motion was denied and they appeal..

The accident occurred in Ulster county, where both of the defendants reside. Whatever cause of action the plaintiff has -arose in that county and it is obvious from the papers used on the motion that the greater number of witnesses there reside. It seems to be generally settled that in transitory actions the ■ action should be tried in the county where the transactions involved in the controversy took place, unless a large prepon- ' derance of the witnesses live in another county. (Jacobs v. Davis, 65 App. Div. 144 ; Lutfy, v. Sullivan, 119 id. 506; Harrison v. Holahan. 122 id. 740;. Studebaker Bros. Co. v. W. N. Y. & P. Traction Co., 140 id. 308.) Under this rule I think the court erred in denying the defendants’ motion.

• The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial froih the county of New York to the county of Ulster should be granted, with ten dollars costs.

Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred. ■

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Cases cited

Jacobs v. Davis 65 App. Div. 144 N.Y. App. Div. 1901-11-08 p. 66