Perry v. Boomhauer — 43 N.Y. St. Rep. 375

Majority

p. 375

William B. Perry et al., Resp’ts, v. Albert D. Boomhauer, App’lt.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Tenue—Change of.

Where it is plainly apparent that the convenience of witnesses will be promoted by a change of the place of trial, the fact that the contract was made in the county m which the trial is claimed should not lead to a denial of a motion to change the venue.

Appeal from order denying motion to change place of trial.

L. P. Shedden, for app’lt; J. A. Shoudy, for resp’ts.

It would seem that this motion should Lave been granted.

. The fact that it may be necessary for the defendant to examine the most if not all the witnesses named by him seems to be conceded by the learned judge below, as he has provided as a condition of the denial of the motion that the plaintiffs should ■stipulate to take the evidence of defendant’s witnesses in the county in which they live.

It is undoubtedly true that the place of the contract should have an important bearing in the determination of the question of ■a change of venue; but it should not necessarily control. Where it is plainly apparent that the convenience of witnesses will be promoted by a change of the place of trial the fact that the contract was made in the county in which a trial was claimed by the plaintiff should not lead to a denial of a motion to change such place of trial.

We think, therefore, in the case at bar that the motion should "have been granted.

The order appealed from should be reversed, with ten dollars ■costs and disbursements, and the motion granted.

Lawrence, J., concurs.