Navratil v. Bohm — 26 A.D. 460

Majority

p. 460

Anton Navratil and Anna Navratil, Appellants, v. Leopold Bohm, Respondent.

Headnote

. -Place of trial— it will, not bts.changed frorn-QueensCounty fa New York cov/nty for tlie convenience of witnesses — changed for the reason that the cause of action arose, ■ ■ and that both parties reside, in Neio York. ... ..

57hgre, on a' motion to change the pláoe of trial.'of an action .from the county of Queens to the county, of. New York, made on the ground that themonvenience of witnesses and the ends of justice will be promoted by the change, it appears from the defendants affidavit that the cause of action arose in the city of New York, in which county both the plaintiff and'defendant reside) the motion wili : be granted for -the- reasons last stated, although' no) demand for a-change, ■ ás a matter of right,, has been made under section 986 of the..Code of Civil Procedure. ■ . ,

¿emite, that the place of the trial of an action will not he changed from the county bf Queens to that of New York upon.the ground'of. the convenience of witnesses. • ' ...

Appeal by the- plaintiffs, Anton Nhvratil - and another, 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 Queens on the 20th day of December,, 1897, granting the defendant’s motion to change tlie-place, of trial of the action from the : county of Queens to the county of .New York. .. . . . -

Isaac Josephson, for the appellants.

Edward Kaufmann, for the respondent.

The. affidavit-upon which the- defendant-, moved to change the place of trial of this-action shows that the motion was based solely upon- the 3d-subdivision bf section 987 of the Code of Civil Procedure, which authorizes the court to grant such, an application upon the ground that the convenience of witnesses and the ends of justice will be promoted by the change.. There was no demand, under section .'986, that the change should be made because. Queens- county was not the - proper county, and, therefore, no question arises as- -tp whether the defendant was entitled to have the action transferred to tlie- county of .New York as a matter of right.

p. 461

So far as the convenience of witnesses is concerned it is well settled by a long series of adjudications in this department, beginning early in the'present century, that the venue will not be changed from the county of Kings to the county of Hew York on this ground. As long ago as 1805 the old Supreme Court said : “The court house •of the county of Kings is" so contiguous to the city of Hew York that there is no hardship in carrying witnesses from one place to the other. There is hardly a county in the State, in which the witnesses who attend a trial, do not travel further than they will in the present suit.” (Mumford v. Cammann, 3 Caines, 139.) The existing court house in Queens county is little, if any, further from Hew York county, and the same rule has long obtained in regard to applications to change the place of trial from that county to Hew York on the ground of .the convenience of witnesses. (Daley v. Hell man, 16 N. Y. Supp. 689 .)

If, therefore, the record before us on the present appeal contained nothing more than the evidence intended to convince us that it would be more convenient for the witnesses in the 'case to attend a trial in Hew York than a trial in Queens county, we should feel constrained to reverse the order appealed from. But there are certain facts set out in the moving papers, and not denied by the plaintiffs, which convince us that the ends of justice will be promoted by the change, and, hence, that we ought not to interfere with the order. It appears from the defendant’s uncontradieted affidavit that the cause of action arose in the county of Hew York; that the' defendant resides in that county, and has resided there for upwards of thirty-five years, and that at all the times mentioned ' in the complaint the plaintiffs were also residents of the county of Hew York. Under these circumstances, it is only just and proper that the controversy between these parties should be litigated and determined in the forum of the locality in which that controversy arose, and of which they are inhabitants, rather than in a neighboring judicial district, where the courts are too fully occupied to sanction the unnecessary importation of litigations from other parts of the State.

All concurred.

Order affirmed, with ten dollars costs and disbursements.