Deutsch v. E. M. Upton Cold Storage Co. — 146 A.D. 588

Majority

p. 588

Samuel Deutsch, Respondent, v. E. M. Upton Cold Storage Company, Appellant.

Second Department,

October 20, 1911.

Headnote

Practice — change of venue to county where cause of action arose.

Where on a motion for a change of venue in an action for damages.for negligence in improperly storing celery in a cold storage warehouse the number of material witnesses on each side is about equal, the trial should be had in the county in which the cause of action- afose and in which the warehouse is located.

The convenience of witnesses who are employees of the party intending to call them should be considered on the motion as much as the convenience of other witnesses.

• Appeal by the defendant, the E. M. Upton Cold Storage Company, from an order of the Supreme Court, made at the Orange Special Term and entered, in the office .of the clerk of the county of Orange on the 2rfch day of March, 1911.

Merton E. Lewis, for the appellant.

Robert H. Barnett [S. Edmund Sladkus with him oh the brief], for the respondent.

This appeal is from an order of the Special Term denying a motion to change the place of trial of the action from Orange county to Monroe county, for the convenience of witnesses, and to promote the ends of justice. The action is to. recover damages for the alleged negligence of the defendant in storing a quantity of celery in its cold storage warehouse. The answer

p. 589

denies negligence and alleges that at the time the celery was delivered to the defendant for storage it was frozen and in poor condition; that when it was redelivered to the plaintiff it was in as good condition as when received, and that it was then inspected by plaintiff and accepted;

The plaintiff is a resident of the county of Orange and is , engaged in the purchase and sale of celery in the borough of Manhattan, New York city. The defendant is a domestic corporation engaged in the business of cold storage for hire in the city of Rochester, Monroe county. The contract for storage was made in Monroe county; the celery was delivered to the defendant in that county, and the celery was redelivered to plaintiff in Monroe county. It appears that the defendant will call several material witnesses on the trial of the action who reside in Monroe county, and that the plaintiff will call about the same number of persons as witnesses who do not reside in the county of Monroe. Under such circumstances I think this court is. committed to the rule that the trial should be had in the county in which the alleged cause of action arose. (Pinkus v. United Cloak & Suit Co., 124 App. Div. 535 .) In addition to this, it is made to appear that the defendant cannot try this action in Orange county without serious injury to its business, and this fact must not be overlooked in the determination of the question presented. It is urged that some of the witnesses the defendant proposes to call are its employees, and that their convenience should not be considered in determining this motion. There is no direct proof supporting this contention, but conceding it to be true, I know of no rule that the convenience of necessary and material witnesses for a party, who are his employees, should not be considered in determining an application of this character.

It follows that the order must be reversed, with ten dollars costs and disbursements; and the motion to change the place of trial from Orange to Monroe county granted, with ten dollars costs.

Jenks, P. J., Burr, Oarr and Woodward, JJ., concurred.

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