Browne v. Town of Mount Hope — 73 A.D. 599

Majority

p. 599

Grace A. Browne, as Administratrix, etc., of Robert E. Browne, Deceased, Respondent, v. The Town of Mount Hope, Appellant.

Headnote

Venue—changed, in an action for injury on an alleged highway, to the county in which the highway is — absence, in the moving affidavit, of a positive statement that the witnesses named will swear to certain facts.

Where, in an action brought against the town of Mount Hope, located in Orange county, to recover damages resulting from the death of the plaintiff’s intestate, who was killed on an alleged highway in that town, a motion is made by the defendant to change the venue from the county of Kings to the county of Orange, on which it appears that one of the principal issues to be litigated upon the trial is whether the officers of the town ever exercised any such authority over the alleged highway as would render the town liable, and that the defendant will require the testimony of thirty witnesses, all of whom are residents of Orange county, and most of whom live in the town of Mount Hope, while the opposing affidavits mention fourteen residents of Kings county, whose testimony will be required by the plaintiff, the venue should be changed to Orange county.

The absence in the moving affidavits of a positive statement that the facts relied upon by the defendant can be proved by the witnesses named does not require the denial of the motion. It is sufficient that the moving papers disclose facts indicating a strong probability that the witnesses will testify to the facts stated.

Appeal by the defendant, The Town of Mount Hope, 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 Kings on the 2d day of May, 1902, denying the defendant’s motion to change the place of trial of the action from the county of Kings to the county o<f Orange, for the convenience of witnesses.

Roderick Robertson, for the appellant.

Rufus 0. Gatlin, for the respondent.

In the exercise of a fair discretion we are constrained to conclude that the venue herein should be changed to Orange county, where the cause of action arose. The plaintiff seeks to render the defendant liable for the death of her husband, which is alleged to have been caused by the neglect of the commissioner of highways in the town of Mount Hope to provide a sufficient guard or fence upon a road leading to the village of Otisville. It is alleged in the complaint that this road has been a highway, under the control and superintendence of the commissioner of highways, for more than twenty years. This allegation is denied in the answer, which expressly avers that it was never granted or conveyed to the defendant for any purpose whatever, or ever accepted by the defendant or ever lawfully ascertained, described or entered of record in the office of the town clerk.

It is plain from the pleadings that one of the principal issues to be litigated upon the trial will be the question whether the officers of the town ever exercised any such authority over the place where the plaintiff’s intestate was killed as to render the town liable for injuries resulting from the condition of things existing at that spot. The affidavits in support of the motion show that the defendant will require the testimony of thirty witnesses, all of whom are residents of Orange county and most of whom live in the town of Mount Hope, while the affidavits in opposition to the motion mention but fourteen residents of Kings county whose testimony will be required by the plaintiff. The numerical preponderance of the witnesses for the moving party is so great as to entitle the defendant to prevail upon the motion, when considered in connection with the fact that the cause of action arose in Orange county.

The respondent cites the case of Lyman v. Gramercy Club ( 28 App. Div. 30 ), where it was held that the moving papers were insufficient to authorize a change of venue because they merely stated that the moving party expected to prove certain facts by the witnesses named, but failed to state that such facts could be proved by the witnesses or to disclose grounds showing that the facts could probably be established by the persons designated. It is true that in the present case there is no positive statement that the facts relied upon by the defendant can be proved by the witnesses

p. 601

named, but I think that the defendant’s papers do disclose grounds indicating a strong probability that the witnesses will testify to the facts stated. This is enough.

In Kubiac v. Clement ( 35 App. Div. 186 ) it was held that where a ease is evenly balanced as to witnesses, the locality in which the cause of action arose is an important element in the determination of an application to change the venue; and it is still more important in a case like this where the witnesses of the moving party outnumber those of the other side in the proportion of more than two to one.

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

All concurred.

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