Marsoff v. Fast — 151 N.Y.S. 418

Majority

p. 418

MARSOFF v. FAST.

(Supreme Court, Special Term, Bronx County.

December, 1914.)

Headnote

Venue (§ 4^[1] ) — Tbansitory Actions — Change of Place of Trial.

A transitory action should be tried in the county where the transaction involved occurred, unless a large preponderance o£ the witnesses live in another county; and plaintiff, bringing an action in another county, cannot prevent a change to the proper county, where he fails to show that the majority of the witnesses live in or near the other county.

[Ed. Note. — For other cases, see Venue, Cent. Dig. § 3; Dec. Dig. § 4.*]

Action by Mattie Marsoff against Edward Fast. . On motion tc change place of trial.

Granted.

p. 419

Lackey & Dibbell, of Phoenicia, for the motion.

Grauer & Rathlcopf, of New York City, opposed.

Under the well-settled rule that transitory actions should be tried in the county where the transactions involved in the controversy took place, unless a large preponderance of the witnesses live in another county (Fluckiger v. Haber, 144 App. Div. 65 , 128 N. Y. Supp. 739 , and cases there cited), this motion to change the venue to Greene county should be granted. It was there that the accident occurred, and the plaintiff has failed to show that the majority of the witnesses live in or near Bronx county, in which she has brought her action. On the contrary, even assuming that the two witnesses whose residence is in dispute reside in New York City, still a greater number who have actual knowledge of the circumstances of the accident and-its effect on the plaintiff, and her statements as to such circumstances and effects, undisputedly reside in Greene county.

The motion is granted, with $10 costs. Settle order on notice.