Hemenway v. Fitzgerald — 159 A.D. 748

Majority

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John F. Hemenway, Administrator, etc., of Josephine Hemenway, Deceased, Respondent, v. Ann Fitzgerald, Appellant.

First Department,

December 31, 1913.

Headnote

Practice — change of venue — convenience of witnesses.

A motion by a defendant to change the place of trial for the convenience of witnesses should be granted where it appears that she has five witnesses beside herself residing in the county to which the Venue is sought to be changed whose testimony will be necessary and material, and that the plaintiff has a single witness residing in the county where the venue is now laid.

Appeal by the defendant, Ann Fitzgerald, 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 4th day of October, 1913, denying defendant’s motion for a change of venue.

Abel Merchant, Jr., for the appellant.

Mervyn Mackenzie, for the respondent.

Appeal from an order denying a motion to change the place of trial, for the convenience of witnesses, from New York to Eensselaer county. Action is upon a promissory note alleged to have been made by one Eowan, payable to the order of the Sunset Silver Lead and Zinc Mines Company, indorsed by defendant before delivery to the'payee and subsequently, before maturity, transferred to plaintiff’s intestate. It was dated at Albany, N. Y., and there presented for payment, which was refused, and protest alleged to have been duly served. The answer is a general denial and affirmative defenses of payment, that the note was procured by fraud, and want of consideration.

The defendant is a resident of Rensselaer county, N. Y., and plaintiff’s intestate died a resident of Onondaga county, N. Y., and letters of administration of her estate were there issued to the plaintiff. It appears from the moving affidavits that defendant has five witnesses, besides herself, residing in Bensselaer county, whose testimony will be necessary and material upon at least one or'the other of the issues in the action; that

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defendant is over seventy years of age, infirm and unable to travel. It does not appear that the plaintiff has a single witness residing in the city of New York.

Upon these facts I am of the opinion that the motion to change the place of trial should have been granted. The fact that the only necessary and material witnesses, so far as appears, reside in Rensselaer county, is sufficient of itself to justify the changing of the place of trial from such county to the county where the defendant resides.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

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