Tuthill v. Long Island Railroad — 58 N.Y. St. Rep. 195

Majority

p. 195

Gabriel Tuthill, Resp’t, v. Long Island Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed January 5, 1894.)

Headnote

Tenue—Change.

The venue will not usually be changed from the country to the city of New York or Brooklyn, especially where the number of witnesses is equal and the plaintiff is unable to transport his witnesses or to endure fatigue.

Appeal from an order denying a motion to change the place of trial from Orange to either Kings or Queens county.

Wm. C. Beecher, for app’lt; Vanamee, Watts & Vail, for resp’t.

This action is based upon the negligence of the defendant, which resulted in injury to the plaintiff. The venue is laid in Orange county, where the plaintiff resides, and the defendant made a motion, at a special term of this court, to change the place of trial from Orange county to either Kings or Queens county for the convenience of witnesses. The motion was denied, and the defendant has appealed from the order of denial.

The defendant swears to 20 witnesses, and the plaintiff swears to 21. Assuminfi, as we must, that all these witnesses are deemed necessary by the parties, the plaintiff makes the stronger case. It has been held that the motion must be denied where the numbers of witnesses are equal. Wood v. Bishop, 5 Cow. 414 . But there are other controlling considerations. It is very unusual to change the place of trial from the country to the city, either the city of Blew York or Brooklyn. The reason is that the court calendar’s in those cities are large, and the uncertainties of a trial are so great that a litigant whose witnesses reside in the country encounters delays and expenses that would ordinarily deter him from the pursuit of his rights. On the other hand, a cause upon the calender of a country circuit can always be set down for trial for a day when it will be reached and tried. In that way the convenience of witnesses is best consulted, even though they all reside in the city to which the trial is sought to be had. In this case the distance to be traveled is the same for each set of witnesses; but that has now come to be a matter of small moment. The facilities of travel have annihilated space, and the distance is counted by hours and minutes. It is true the county of Queens is mentioned in the notice as an alternative county. The courts in that county are held at the court-house in Long Island City, and the inconveniences of 21 witnesses in attending court there would be well-

p. 196

nigh insurmountable. Moreover, there is a difference in the situation of the parties. The plaintiff is in poor circumstances, and unable to transport his witnesses. The reverse is the condition of the defendant. The health of the plaintiff is shattered, and he is unable to endure fatigue. No .such condition obtains with the witnesses for defendant. The plaintiff is a resident of Orange county, and his physician resides there likewise; so do all his friends who know his physical condition before the accident. In our view, this is not a case where the location of the transaction should control. The defendant’s witnesses do not all reside either in Kings or Queens county; according to the affidavit, six of them reside in New York. Under all the circumstances surrounding the case, we think it should be retained in Orange county, and that the order should be affirmed, with $10 costs and disbursements.

All concur.