Hedges v. Bemis — 38 A.D. 349

Majority

p. 349

Edward S. Hedges, Respondent, v. Edward H. Bemis, Appellant.

Headnote

•Change of venue for the convenience of witnesses—personal inconvenience to the plaintiff will not defeat it.

"Where a change of the venue of an action to the county where the cause of action arose will promote the convenience of witnesses, the fact that such change will involve inconvenience to the plaintiff will not operate to prevent it.

Appeal by the defendant, Edward H. Bemis, from an order of the Supreme Gourt, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of December, 1898, denying the defendant’s motion to change the place ■of trial of the action from the county to Hew York to the county ■of Warren for the convenience of witnesses.

Esek Gowen, for the appellant.

William G. Brown, for the respondent.

Upon an examination of the affidavits that were presented to the ■court upon the hearing of this motion, it is apparent that many of the witnesses who have been sworn to as being necessary upon the part of the plaintiff can never be examined upon the trial; and that the defendant will examine a greater number of witnesses, whose ■convenience will be consulted by a change of venue.

But it is urged that the ends of justice will not be promoted by such change of venue because of the inconvenience which.it will cause the plaintiff; that he will be unable to defray the expenses of the trial in Warren county and is too infirm to travel so far.

The evidence in regard to the poverty of the plaintiff is somewhat unsatisfactory, as also is that respecting his inability to go to Warren county upon the trial of this case. But where the cause of action has arisen in another county, and the convenience of the witnesses will be promoted by a change of venue to that county, we are not aware of any rule which will permit the inconvenience to the plaintiff to prevent its removal to the proper county.

We think, therefore, that the cause of action having arisen in Warren county, in view of the condition of the evidence in regard to the witnesses, the motion should have been granted.

p. 350

The order appealed, from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars, costs to abide the event.

Barrett, Rumsey, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs, and disbursements, and motion grantéd, with ten dollars costs’ to abide event.