Dexter v. Alfred — 35 N.Y. St. Rep. 489

Majority

p. 489

Orlando P. Dexter, App’lt, v. Warren Joseph Alfred, Resp’t.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Venue—Trespass.

An order changing the place of trial of an action for trespass on lands to the (ounty where such lands are situated will be sustained, especially where the value of the land is small, and the convenience of witnesses and the ends of justice will he promoted and the expense of trial reduced by the change. •

Appeal from an order granting defendant’s motion to change the place of trial from New York county to Franklin county.

The following is the opinion at special term:

Beach, J.—The action is brought to recover damages for alleged trespass upon the plaintiff’s realty by defendant. The lands are situate in the county of Franklin. The venue named in complaint is the county of New York, which the defendant moves the court to change to Franklin county upon two grounds: that the county of New York is not the proper county, and that the convenience of witnesses and the ends of justice will be promoted by the change. It seems to me that the decision of the general term of the second department in Fasten v. Booth, 19 W. Dig., 552, upon the point that Franklin is the proper county, under § 982, Code of Civil Procedure, is properly controlling in this court None of the authorities cited by plaintiff’s counsel seem to touch the point except Polley v. Wilhisson, 5 Civ. Pro., 185. This case was decided by the general term of the city court of Brooklyn, and while entitled to great consideration, cannot have the effect here of Fasten v. BootJi, supra. The defendant, under the latter decision, is entitled as matter of right to the change of venue. The like result has also been reached by the general term of the second department in Freeman v. Thomson, 50 Hun, 840 ; 20 N. Y. State Rep., 194.

With two authoritative adjudications in this court it would be a departure from sound rule to ignore them. Upon the other branch of the motion there can be no doubt but what the convenience of necessary witnesses would be promoted by the change. Almost if not all are residents of Franklin county, and to impose upon the defendant the expense, necessarily onerous, both of time and money, might result in a denial of justice. The idea that the action cannot be fairly tried in Franklin county because of defendant’s local influence I cannot concur in. I am unable to conceive that there is any locality within the jurisdiction of this court where a legal contention between citizens cannot be fairly disposed of. A community may become so interested in local questions of a public nature as to render obtainment of a proper jury difficult or impracticable.

p. 490

This is not a case of that character. Motion granted, with ten dollars costs to abide the event.

Rufus P. Livermore, for app’lt; Thomas Cantwell and William P. Pickett, for resp’t.

J.— The motion to change the venue in this case was granted by Justice Beach for the reasons that under the provisions of the Code the county of New York was not the proper county for the trial, the cause of action relating to a trespass committed upon real estate in Franklin county, and that the convenience of witnesses and the ends of justice would be promoted by the change.

The latter ground is sufficient to justify the order made in the court below. Whatever doubt may exist with regard to the provisions of § 982 of the Code on the subject of local actions, as stated by Justice Beach, there are two authoritative adjudications that an action like this is embraced within the section mentioned and which provides that the actions named in it must be tried in the county in which the subject of the action or some part thereof is situated.

The application made to change the place of trial is one characterized by very great zeal and is presented in most elaborate form, affidavit being filed upon affidavit, and each ground assumed by defendant fought with great earnestness and great dexterity; but the fact remains that the action relates to a trespass committed in Franklin county, and upon a piece of property of comparatively small value, and one which, for the purpose of securing a trial here, the appellant is willing -to stipulate has no actual value beyond the sum of $400; and further that the actual damages to the land resulting from the defendant’s trespass would not exceed the sum of sixty dollars. Although these offers are accompanied by. one to pay $400 to defray the expense of the defendant’s witnesses, if the place of trial be changed, yet the proposition to allow that sum is so coupled with curious conditions that it does not appear to be very desirable and certainly has not proved acceptable to the respondent. In such an action as this an order made by the court below after a deliberate consideration of the whole subject should be sustained, in the absence of very controlling reasons which do not exist here. Under all the circumstances it seems to have been a very proper direction that the action should be tried in the county in which the cause of action originated. It may be said, also, that there can be no doubt that the expense of the trial of the action in the city of New York would be very much enhanced over that which would attend it in Franklin county, an important consideration which should not be lost sight of in applications kindred to this.

For these reasons, in addition to those assigned by the learned judge in the court below, it is thought that the order appealed from should be affirmed.

Yak Brunt, P. J., and Daniels, J., concur in the result.