Perelstein v. Weitkus — 206 A.D. 277

Majority

p. 277

Morris Perelstein, Respondent, v. George J. Weitkus, Appellant.

First Department,

July 6, 1923.

Headnote

Trial — change of venue — place of trial of action for wrongfully taking and detaining cattle in Sullivan county changed from Bronx county to Sullivan county on ground of convenience of witnesses.

The venue of an action for wrongfully taking and detaining cattle in Sullivan county should be changed from Bronx county to Sullivan county on the ground

p. 278

of convenience of witnesses and the promotion of the ends of justice, where it appears that the action is transitory and neither of the parties resides in the county of Bronx; that the defense is that the defendant detained the cattle under sections 380-396 of the Town Law; that the fence viewers assessed damage against the plaintiff and in favor of defendant, and that the said defense will be the principal issue in the case which can be proven only by witnesses residing in Sullivan county.

Appeal by the defendant, George J. Weitkus, from, an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 28th day of April, 1923, denying his motion to change the place of trial from the county of Bronx to the county of Sullivan, made upon the grounds of the convenience of witnesses and the promotion of the ends of justice.

Henry F. Gardner [Jacob C. Brand of counsel], for the appellant.

Herman Kreizvogel [Benjamin Fenster of counsel], for the respondent.

The court at Bronx Special Term refused to change the venue to Sullivan county where the cause of action arose. The cause is for the wrongful taking and detention of five cows belonging to plaintiff. The defense is that they broke the defendant’s close, and were detained under sections 380-396 of the Town Law for damage to the freehold and growing crops, and that such proceedings were had under the Town Law; that the town fence-viewers assessed the damage at thirty dollars, which plaintiff paid and the cows were restored to him.

The witnesses for the defendant are mostly public officers of the town of Delaware, Sullivan county; and since the taking and detention is conceded, the defendant will have the burden of proving his compliance with the statute in relation to seizure of estrays damage feasant, and so will obviously need the testimony of witnesses in justification of the action of the fence-viewers. While the fence-viewers’ determination should be filed with the town clerk, and is presumptive evidence of the findings therein and might be subpoenaed, it does not appear here that the record was actually filed or that it would sufficiently disclose the facts.

The defendant is entitled to the common-law proof of the officials, if he wishes to use it; and because the action is transitory and neither of the parties resides in the county of Bronx, where the action is brought, I think the action should be transferred to the place where it arose.

p. 279

The order should be reversed, with ten dollars costs and disbursements, and the motion granted to change the place of trial to Sullivan county, with ten dollars costs,.

Clarke, P. J., Smith, Mersell and Martin, JJ., concur.

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