Osterhout v. Rabe — 39 A.D. 413

Majority

p. 413

Richard C. Osterhout, Respondent, v. Rudolph F. Rabe and Second National Bank of Hoboken, New Jersey, Appellants.

Headnote

Change of venue—when the number of witnesses on each side is the same the place of the transaction will control — the rule as to changing from a rural county to Yfew York is inapplicable to Erie county.

Where, upon a motion to change the place of trial of an action from the county of Erie to the county of New York for the convenience of witnesses, it appears that the number of necessary witnesses on each side is evenly balanced, and that the transaction upon which the controversy hinges took place in the county of New York, the place of trial will be changed to that county.

Semble, that the rule that the trial of an action will not he transferred from a rural county to the city of New York, if such a rule exists, does not apply to a motion to change the place of trial from Erie county to the county of New York.

Appeal by the defendants, Rudolph F. Rabe and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 17tli day of November, 1898, denying the defendants’ motion to change the venue of the action from the county of Erie to the county of New York, upon the ground of the convenience of witnesses.

The plaintiff claims to be the owner of a chattel mortgage executed by August Hammersen to John B. Manning, dated November 11, 1893, and filed and recorded in the cleric’s office of Hudson county, N. J., where the property was; that this chattel mortgage wras assigned to the plaintiff December 24, 1894, which assignment was never filed or recorded. It is further alleged in the complaint that the chattel mortgage was assigned by Manning to the defendant Rabe, who was his confidential attorney, “ for the purpose of enabling said Rudolph F. Rabe, as he advised, to follow out certain plans for the protection of the interests of said John B. Manning; ” that Rabe was president of the defendant bank, and assigned said chattel mortgage to said bank to secure a certain indebtedness held by said bank against said Manning, which said assignment was made without the knowledge, approval or authority of said John B. Manning; that on the 11th day "of November, 1897, the defendant bank, in pursuance of said assignment, took possession of the property covered by said chattel mortgage, and sold the same at public auc

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tion, appropriating the avails thereof and applying them upon said indebtedness; that the value of said property is $14,500.

The defendants, while admitting the execution of the chattel mortgage, claim that it was an absolute assignment, delivered to Rabe, as president of the bank, as collateral security to an indebtedness held by the bank against Manning.

Elbridge L. Adams, for the appellants.

Adelbert Moot and Wm. L. Marcy, for the respondent.

The plaintiff claims to be the assignee of the chattel mortgage given by one Hammersen to John B. Manning, a copy of which instrument forms a part of the complaint.

■ The contention of the plaintiff is that the defendant Rabe, who was an attorney at law and the. confidential adviser of Manning, prepared an assignment of the chattel mortgage for Manning and retained possession of the same, to be used for the benefit and to protect the interests of Manning, precisely in what manner is not disclosed in the papers on this motion. It further claimed that Rabe “ attempted to complete the execution of said instrument and delivered the same to defendant” bank, to which Manning was indebted, without the approval or knowledge of Manning; that thereafter the bank took possession of the major part of the property included in the chattel mortgage and sold the same, appropriating the avails of the sale.

The defendants, in separate answers, denied the transaction with Rabe as set forth in the complaint, and alleged an actual assignment to the bank to secure an indebtedness of over $20,000, and that, upon the failure of Manning to pay at maturity, the mortgage was foreclosed, and that the moneys arising from the sale were applied toward the payment of this indebtedness; that Rabe was the president of the defendant bank, and was simply acting in his official capacity in accepting the chattel mortgage for its benefit.

It is quite evident the real controversy between the parties hinges upon the transaction with Rabe. If the assignment of the chattel mortgage was prepared by him as the confidential attorney of Man

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ning, for a specific purpose, and then, in violation of the instructions of his client, he delivered it to the bank, that institution acquired no title to the instrument or to the property covered thereby. If, however, there was an absolute assignment to the bank as collateral security for the conceded indebtedness of Hanning to it, then the delivery of the mortgage to the bank was simply the consummation of the arrangement with Rabe, and the right to sell the property by virtue of the chattel mortgage was, of course, in the bank.

The moving papers on behalf of the defendants show that See-man, Faerber and Schaefer, all residents of Hew York, and Keeler and Stoll, residents of Brooklyn, are necessary and material witnesses. In this calculation I ignore the non-resident witnesses, although in a county of Hew Jersey adjacent to Hew York county, and also leave out of the computation Fromme and Hammersen, who have respectively made affidavits they will not testify as asserted by Rabe. In the plaintiff’s list of material witnesses the three Hannings make the sum total. The proposed testimony of Kennedy and Walker is incompetent, as in each instance the original document controls the fact to which the witness is expected to testify. So it might be fairly said there is no marked difference between the parties in the number of necessary witnesses.

It is in close cases of this kind that the rule that the place of the transaction will be controlling is especially pertinent. (Hausmann v. Moore, 7 App. Div. 459 ; Kubiac v. Clement, 35 id. 186 ; Adri ance; Platt & Co. v. Coon, 15 id. 92.)

Either this rule must in effect be abrogated entirely, or weight given to it in transitory actions, where there is an even balance in the number of necessary witnesses. In this case it is conceded the transaction with Rabe occurred in the city of Hew York. It is also apparent the pith of this lawsuit is that transaction. A better illustration for giving effect to the rule that the trial should take place where the cause of action originated cannot be conceived than is developed by the affidavits on this motion.

The principle invoked by the counsel for the respondent, that the trial of an action will not be transferred from a rural county to the city of Hew York, where the calendars are congested, is hardly applicable to a motion to change from Erie county to Hew York.' In any event, that principle is overborne by the obvious trend of

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the more recent authorities, to locate the place of trial in the county where the chief disputed events happened.

The order of the Special Term is reversed, with ten dollars costs and disbursements, and the motion to change the place of trial to New York county is granted, with ten dollars costs to abide the event of the action.

All concurred, except Adams, J., not voting.

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