Brecht v. Jagger — 172 A.D. 880

Majority

p. 880

Frederick W. Brecht, Respondent, v. David W. Jagger, Appellant.

Second Department,

May 12, 1916.

Headnote

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

Action by an assignee of claims for services rendered by his assignors. Held, that the venue should be changed from the county of the plaintiff’s residence to the county where the cause of action arose and the services were performed.

Appeal by the defendant, David W. dagger, 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 Kings on the 11th day of February, 1916, denying his motion •to change the venue from Kings county to Orange county.

Peter Cantline, for the appellant.

Albert W. Meisel, for the respondent.

The ends of justice will be promoted by trying these issues in Orange county. It was -there that plaintiff’s assignors resided and rendered the services sued for. We have to consider the county where the cause of action arose (Jacina v. Lemmi, 155 App. Div. 397 ) rather than the convenience of a plaintiff suing upon an assigned claim. (Belden v. Schapiro, 138 App. Div. 669 .) Plaintiff’s opposing affidavits array ten witnesses, mostly cumulative, for the purpose of showing that defendant was trustee under the agreement of April 24,1914, and acted as such. But this agreement does not appear to be disputed, and plaintiff’s acts under it may apparently be proved by witnesses in Newburgh without cumulative testimony from New York.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements to appellant to abide the event, and defendant’s motion granted to change the place of trial to Orange county.

Jenks, P. J., Carr, Stapleton, Rich and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to appellant to abide the. event, and motion granted.