Sparks v. United Traction Co. — 66 A.D. 204

Majority

p. 204

William K. Sparks, Respondent, v. United Traction Company, Appellant.

Headnote

Change of venue— denied where the defendant’s witnesses were its own employees and the plaintiff’s were laborers who could attend in another county only with serious loss.

On a motion by a. defendant to change. the place of trial of an action from the county of Erie to the county of Albany, it appeared that the action was brought to recover damages for an alleged breach of a contract of employment; that the contract was made in the county of Erie while the alleged breach occurred in the county of Albany; that the transaction concerning which the main contro, versy arose took place in the city of Buffalo at the time the contract was made. Neither party showed a decided preponderance of witnesses, but it appeared

p. 205

that the plaintiffs witnesses were mostly laboring men who could not attend court in Albany without serious pecuniary loss and inconvenience, while nearly all of the defendant’s witnesses were its own officers and employees. Held, that an order denying the motion would not be disturbed by the Appellate Division.

Appeal by the defendant, the United Traction Company, 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 25th day of September, 1901, denying the defendant’s motion to change the place of trial of the action from the county of Erie to the county of Albany.

Albert Hessberg and P. C. Dugan, for the appellant.

Nelson T. Barrett, for the respondent.

This action was brought to recover damages for an alleged breach of contract of employment, and- the venue was laid in Erie county.

The defendant’s motion to change the place of trial to the county of Albany was based upon the ground of the convenience of witnesses, and also because the ends of justice would be promoted by such change.

The rule which has governed this court in its consideration of appeals of this' nature has been repeatedly declared to be that on a motion to change the place of trial of a transitory action for the convenience of witnesses, where it appears that the number of material witnesses required by each side is about the same and that’ they will not be greatly inconvenienced by the trial of the action in either of two counties, the trial should be had in the county where the cause of action arose, or where the principal transactions took place. (Hausmann v. Moore, 7 App.Div.459; Kubiac v. Clement, 35 id. 186; Osterhout v. Rabe, 39 id. 413.)

In the present case the contract which lies at the foundation of the plaintiffs cause of action was entered into in the county of Erie, while its alleged breach occurred in the county of Albany.

The defendant puts at issue the allegation in the complaint as to the making of the contract, its nature and extent, and it also denies

p. 206

that there was any breach thereof; but it is apparent, we think, that the principal transaction, that is, the one concerning which the main controversy arises, and the one which will require the greater. number of witnesses, took place' in the city of' Buffalo, at the time the contract in question was entered into. And while neither party shows any very decided preponderance of witnesses as absolutely essential and material upon-this issue, those relied upon by the plaintiff to sustain his contention are mostly laboring men, who-could not well attend court in Albany without serious pecuniary loss and inconvenience, while nearly all of the defendant’s witnesses are its own officers and employees, several of whom become unnecessary by reason of the plaintiff’s admissions in his opposing affidavits. This circumstance may well have influenced the court below to exercise its judgment and discretion in favor of the plaintiff, and upon the assumption that such was the case, we do not feel disposed to interfere.

The determination of a motion to change the place of trial on the ground of the convenience of witnesses often resolves itself into the exercise of the discretionary power of the Special Term, and, when-thus exercised, it should not be disturbed by an appellate tribunal unless it is made clearly to appear that there has been an abuse-of that power. (Fitzgerald v. Payn, 78 Hun, 38 ; Payne v. E. Electric Co., 88 id. 250.) .

•Some stress is laid by the respondent’s counsél upon certain technical defects in the plaintiff’s opposing affidavits, but as there is nothing in the-record to indicate that any such question was raised upon the motion, we do not feel at liberty to consider it now.

The order appealed from should be affirmed.

All concurred, except Williams, J., who declined to concur in affirmance of the order, unless the plaintiff be required to make the stipulation as to the admission of facts which he offered in his. opposing affidavits to make.

Order affirmed, with ten dollars costs and disbursements.