Schulz v. Hudson Valley Railway — 131 N.Y.S. 995

Majority

p. 995

SCHULZ v. HUDSON VALLEY RY. CO. et al.

(Supreme Court, Appellate Division, First Department.

December 1, 1911.)

Headnote

1. Venue (§ 72*)—Change of Venue—Convenience of Witnesses.

Where conflicting claims with respect to the number and materiality of the witnesses are presented by affidavits, the place where the cause of action arose and where transactions to be inquired into took place form a most important, if not a controlling, consideration in determining an application for change of venue.

[Ed. Note.—For other cases, see Venue, Cent. Dig. § 127; Dec. Dig. § 72.^[2] ]

p. 996

2. Venue (§ 52*)—Change of Venue—Convenience of Witnesses.

Plaintiff sued defendant railroad company and defendant city for injuries sustained by reason of an alleged defective highway. The material facts in dispute related to the condition of the| street at the time of the accident and prior thereto, to the manner in which plaintiff was driving, and to the circumstances under which he met with the accident. On an application for a change of venue to the county where the injury occurred, the action having been brought in another county, where plaintiff claimed he resided, there were conflicting claims as to the number and materiality of the fitnesses to be examined. Held, that defendants were entitled to have tile venue changed, especially ¡¡is it would not be consistent with the public interest to require the officers and employes of the city to abandon their duties and attend a trial in another county.

[Ed. Note-For other cases, see Venue, Cent; Dig. §§ 76, 77; Dec. Dig. 52.^[2] ]

Appeal from Special Term, New York County.

Action by Fred Schulz against the Hudson Valley Railway Company and the Village of Saratoga Springs. From anj order denying a motion of defendant railway company, in which the defendant village was permitted to intervene without affidavits, to change the place of trial from New York to Saratoga county, defendants appeal. Reversed.

Argued before INGRAHAM, P. J., and LAUGHLIN, MILLER, SCOTT, and DOWLING, JJ. i

Frank Gick, for appellant village of Saratoga Springs.

James McPhillips, for appellant Hudson Valley Ry. Co.

Eli J. Blair, for respondent.

The action is brought to recover damages for personal injuries sustained by plaintiff by beirg thrown from a buggy in which he was riding- at the intersection o¡£ East avenue with the speedway and Fifth avenue, being a public highway in the village of Saratoga Springs, on or about the 20th day of August, 1910, alleged to have been caused by negligence on the part of the railway company, in failing to perform its duty to restore and maintain the surface of the street between its tracks in a safe condition for public travel, and to pave the same in accordance with the obligations imposed by its franchise, and on the part of th'e village to properly inspect and keep the streets in repair.

The moving papers show that the plaintiff village of Saratoga Springs and is customarily 3'ear; but plaintiff claims to be a resident of the county'of New York, and the motion was made on the ground of the convenience of witnesses and that the ends of justice would be promoted by the change ■of the place of trial, and not on the ground tjhat the county of Sara-toga is the proper county. The answers of the respective defendants put in issue the material allegations of the complaint with respect to the plaintiff’s freedom from contributory negligence and the charges of negligence .on the part of the defendants. I has a residence in the there a large part of the

[1] We are of opinion that it fairly appears that the convenience of witnesses will be promoted by the change! of the place of trial as duly demanded, and that the ends of justice require that course.

p. 997

Where conflicting claims with respect to the number and materiality of the witnesses are presented by the affidavits, as in the case at bar, the place where the cause of action arose and where the conditions and transactions to be inquired into on the trial existed and took place, form a most important, if not a controlling, consideration.

"[2] Here the material facts in dispute relate to the condition of the street at the time of the accident and prior thereto, and to the manner in which the plaintiff was driving, and to the circumstances under which he met with the accident. It is manifest that the facts_ and circumstances attending such an accident, and upon which the liability or freedom from liability on the part of the defendants depend, can be better inquired into at or near the vicinity of the accident than at a place remote therefrom. Moreover, the action being against a municipal corporation, it is evident that it would not be consistent with the public interests to require its officers and employés to abandon their duties and attend a trial.in New York county.

It follows, therefore, that the order should be reversed, with $10 costs and disbursements to each appellant, and motion granted, with $10 costs to appellant railway company. All concur.