KUBIACK v. CLEMENT et al.(Supreme Court, Appellate Division, Fourth Department.Headnote
1. Change in Place of Trial—Convenience of Witness—Ten-Dav Rule.Under the statute providing that the court may order a change in the place of trial to subserve convenience of witnesses, a motion by defendant for a change on that ground is not within Code Civ. Proe. § 986, requiring that" a written demand for a change in the place of trial by defendant must be served with the answer on the opposing counsel, and providing that, on his failing to consent to the change, notice of a motion therefor may be served within 10 days.
3. Same—Cause of Action—Place of Origin.
On a motion for a change of the place of trial for convenience of witnesses, the fact that the cause of action originated in the county to which the change is asked is to be considered, where the witnesses are evenly divided between the counties.
Appeal from special term, Erie county.
Action by Joseph Kubiack against Frank N. Clement and others for personal injuries sustained from acts done in Niagara county. Defendants moved to change the place of trial to that county, and from a denial of the motion they appeal.
Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and McLENNAN, JJ.Ely, Dudley & Cohn, for appellants.
F. R. March, for respondent.
The affidavits used upon the motion show very clearly that the cause of action originated in Niagara county, and the preponderance of witnesses apparently necessary to be used upon the' trial of the issues reside in Niagara county. A motion was made for the convenience of witnesses, and it was not necessary that it should be made within the 10-day rule laid down in section 986 of the Code of Civil Procedure. In Gior v. Kelly (decided by this court Jan., 1898) 50 N. Y. Supp. 1127 , it was held that, in a case evenly balanced as to witnesses, the county in which the cause of action originated was an important circumstance to be taken into account in determining the motion.' The order should be reversed, with $10 costs, and the motion granted, with $10 costs to abide event.
Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide the event. All concur.