Majority
p. 66William J. Beard, Appl’t; v. Elbert Kipp, Resp’t. (Supreme Court, General Term, Second Department, Filed December 14th, 1886.)
Headnote
'Venue — When okdeb changing, will not be vacated.Where the place of trial was changed for the convenience of witnesses and the defendant thereafter withdrew his answer, there is no reason for vacating the order changing the venue.
Appeal from an order of Justice Cullen, refusing to vacate .-an order of Justice BabNABD, changing the place of trial in this .action, for the convenience of witnesses and refusing to send it .back to the county where it was brought.
William J. G-ay nor, for appl’t; Travis-Smith, for resp’t.
A motion was made in this action to change the place of trial from the County of Kings to the County of Westchester, for the convenience of witnesses, and it was granted, Thereafter the defendant withdrew his answer, and then -the plaintiff moved to vacate the order which changed the venue,
p. 67
that motion was denied, and the plaintiff has appealed from the order of denial.
There is no merit in the appeal: the withdrawal of the answer furnished no reason for the vacation of the order changing the venue. There may be witnesses on the part of the defendant in the assessment of damages, whose convenience should be consulted.
The order should be affirmed, with ten dollars costs, besides disbursements.
BarNAKD and Pratt, JJ., concur.