Majority
p. 25Michael Daley, Resp’t, v. Theodore Hellman et al., App’lts. (Supreme Court, General Term, Second Department, Filed December 14, 1891.)
Headnote
Tenue—Change oe.In an action brought in Queens county for malicious continuance of an action against plaintiff’s assignor, defendants asked a removal to New York on the ground that the cause of action accrued there, the papers in the former action were filed and most of the witnesses resided there. Plaintiff’s affidavits showed that both he and his assignor resided in Queens county; that the papers referred to were printed, and that most of the questions involved in the issues were ones of law. Held, that an order refusing to make the change was proper.
Appeal from order denying motion to change the place of trial from Queens county to the county of New York on the ground of the convenience of witnesses.
Action to recover treble damages for the malicious continuance "by defendants of an action brought by the Metropolitan Concert Co. against plaintiff’s assignor, Sperry, and another. Defendant’s affidavits used on the. motion set forth that the cause of action arose in New York; that the papers in the action named were there filed; that their witnesses resided there, and that neither plaintiff nor his assignor, so far as they could learn, resided in Queens county.
Plaintiff’s affidavits in opposition to the motion stated that both Re and his assignor resided in Queens county; that the papers in the former action are printed and a certified copy of them will cost less than witness fees; and that most of the issues are issues of law, and that most of defendant’s witnesses are not material.
Eugene Seligman, for app’lts; Henry Cooper and Howard A. □Sperry, for resp’t
This is an appeal from an order denying a motion to change the place of trial from the county of Queens to the county of New York for the convenience of witnesses.
As a general rule motions to change the place of trial from any of the counties in the second judicial district to New York are
p. 26
denied, because such change not only fails to subserve the convenience of witnesses, but imposes great inconvenience upon parties.
In this particular case the order was fully justified by the affidavits, and the convenience of both witnesses and parties will bepromoted by a trial at Long Island City in Queens county instead of New York.
The order should be affirmed, with ten dollars costs and disbursements.
Barnard, P. J., and Pratt, J., concur.