Thompson v. Narwood — 46 N.Y. St. Rep. 204

Majority

p. 204

James Thompson, Jr., App’lt, v. Isaac M. Narwood et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed July 2, 1892.)

Headnote

Venue—Charge op—Assault.

Although an action for assault and battery and false imprisonment is a transitory one and may be tried in a county other than that where the.principal transactions occurred, yet, everything else being equal, the court may regard that as an important, if not a controlling factor in determining where the trial should be had.

Appeal from an order changing the place of trial of this action from Rensselaer county to Kings county.

Frank While (Thomas S. Fagan, of counsel), for app’lt; Jackson & Burr (Joseph A. Burr, of counsel), for resp’ts.

action is for an alleged assault and bat tery and false imprisonment of the plaintiff by the defendant in the city of Brooklyn, Kings county. .

The motion is made on the ground of convenience of witnesses; but although this is a transitory action and may be tried in a county other than where the principal transactions which are the subject of controversy occurred, yet, everything else being equal, the court may regard that as an important, if not a controlling factor, in determining where the trial should be had. In Belding v. Ladd, 27 St. Rep., 296 , the court says “Where the number of material and necessary witnesses on each side is substantially equal the place where the transaction occurred ought generally to control.’’

In Maynard v. Chase, 30 St. Rep., 348 , it was held that when the evidence as to the convenience of witnesses is conflicting, and there is no great preponderance, the place where the contract was made or the action is located is an important element in determining the question of a change of place of trial. It is quite probable in this case that all of the witnesses named on either side on this motion will not at the trial be actually needed or called by the parties, but the court can see that some of them are clearly necessary and material, and that among those named the witnesses actually necessary are about equal, and it is fair to presume that the learned judge at the special term reached that conclusion, and as the question of the proper place of trial upon the proof before him was one largely in his discretion, Lane v. Hancock, 29 St. Rep., 635 ; Green v. Weston, 31 id., 478, and as that discretion was not abused, or improvidently exercised, this court should not interfere with his conclusion.

Order affirmed, with ten dollars costs and printing disbursements to the respondent.

Putnam, J., concurs.