Mills v. Sparrow — 115 N.Y.S. 629

Majority

p. 629

MILLS v. SPARROW et al.

(Supreme Court, Appellate Division, Second Department.

March 19, 1909.)

Headnote

1. Venue (§ 52^[1] ) —Change of Venue ob Place of Trial — Convenience of Witnesses.

The place of trial of an action will not be changed from a rural county to either the county of New York or the county of Kings merely to sub-serve the convenience of witnesses.

[Ed. Note.—Eor other cases, see Venue, Cent. Dig. §§ 76, 77; Dec. Dig. $ 52.*]

2. Venue (§ 52*)—Change of Venue ob Place of Trial—Grounds—Ends of Justice—Convenience of Witnesses.

Under the provision of Code Civ. Proc. § 987, requiring that the ends of justice must be promoted, as well as the convenience of witnesses, in order to justify a change of the place of trial, the ends of justice are best subserved in that venue where a speedy trial can be had.

[Ed. Note.—Eor other cases, see Venue, Cent. Dig. §§ 76, 77; Dec. Dig. § 52.*]

3. Venue (§ 68*)—Change of Venue ob Place of Tbial — Convenience of Witnesses—Affidavit on Motion fob Change.

On motion by defendants to change the place of trial from O. county to N. county, on the ground of convenience of witnesses, that plaintiff in his affidavit in opposition to the motion, stating that he had a number of witnesses in O. county, failed to give the names, addresses, and occupations of the witnesses, or to state that the testimony of the witnesses was materia], was not a defect, where the convenience of the witnesses was not controlling.

[Ed. Note.—Eor other cases, see Venue, Dec. Dig. § 68.*]

Appeal from Special Term, Orange County.

Action by Frank E. Mills against John I. Sparrow and another, trading as Sparrow & Smith. From an order denying defendants’ motion to change the place of trial from the county of Orange to the county of New York, defendants appeal. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

S. Marshall Kronheimer, for appellants.

Wilton Bennet, for respondent.

The action is based upon an alleged breach of contract of hiring, but the pleadings are not among the papers on appeal. The plaintiff is a resident of Orange county, and the defendant of New York county. The contract was made in the latter county. The action is brought in Orange county, and the appeal is from an order denying the defendants’ motion to change the place of trial to the county of New York on the ground of convenience of witnesses.

In denying the motion the learned justice at Special Term followed the practice settled in this department for more than a century. The rule was recently reiterated in Quinn v. Brooklyn Heights R. R. Co.,

p. 630

88 App. Div. 57 , 84 N. Y. Supp. 738 , and is as stated in the headnote, that:

“The place of trial of an action will not be changed from a rural county to either the county of New York or the county of Kings merely to subserve the convenience of witnesses.”

In that case the cause of action arose in Kings county, to which county the venue was sought to be changed;, but that fact was not regarded as of sufficient weight to overcome the long established practice. In order to justify a change of the place of trial, Code Civ. Proc. § 987, requires that the ends of justice will be promoted, as well as the convenience of witnesses, and it has always been held in this department that the ends of justice are best subserved in that venue where a speedy trial can be had.

The plaintiff alleged, in his affidavit read on the motion, that he had a number of witnesses residing in the county of Orange; but the appellants claim that that fact could not be regarded, inasmuch as the names, addresses, and occupations are not given, nor is it stated that plaintiff is advised by counsel that the testimony of such witnesses is material and necessary. The omission does not constitute a defect, if the alleged convenience of witnesses is riot to control. As was said by the former General Term in this department in Tuthill v. Long Island R. R. Co., 75 Hun, 556 , 557, 26 N. Y. Supp. 1029 , 1030:

“A cause upon the calendar of a country circuit can always be set down for trial for a day when it will be reached and tried. In that way the convenience of witnesses is best subserved, even though they all reside in the city in which the trial is sought to be had.”

The order should be affirmed, with $10 costs and disbursements. All concur.