Majority
p. 534Helen E. Porter et al., Resp’ts, v. Jabez M. Lyle et al. App’lts. (Supreme Court, General Term, Third Department, Filed December 8, 1892.)
Headnote
Yehue—Change op.Where it appears that one of the plaintiffs and ore witness reside in the county where the venue is placed and the other plaintiff, the defendants and many of the witnesses reside in another county where the transaction in question arose, the place of trial should be changed to the latter county.
Appeal from order denying defendant’s motion for a change of venue from Ulster county to Kings county.
This action is brought to recover, on eight separate causes of action, certain moneys claimed to have been paid to defendants by mistake, or through fraud. The defendants deny the allegations of payment by fraud or mistake, allege that accounts including the items in controversy were made and stated between the
p. 535
parties, and that settlements were made between them on the basis of said accounts.
The plaintiff, Helen E. Porter, resides in Ulster county. The plaintiff Albert V. Porter and both defendants reside in Kings county, where the transactions in controversy were had.
Charles S. Taber, for app’lts; John C. Gray, for resp’ts.
The transactions giving" rise to this litigation arose in Kings county. One of the plaintiffs, both the defendants, and many of the witnesses, reside in Kings county; one of the plaintiffs and one witness reside in' Ulster county, where the venue now is; it is doubtful whether the plaintiff, who resides in Ulster county, is a necessary or material witness.
Under such circumstances, the place of trial should be in Kings county. Ho opinion is necessary.
The order of the special term should be reversed, the place of trial changed to Kings county, with ten dollars costs of motion and ten dollars costs of this appeal, with printing and other disbursements.
Putham, J., concurs; Mayham, P. J., not sitting.