Yeomans v. Malen , 245 N.Y.S.2d 431 ( 1963 )

Appeal from an order of the Supreme Court, Sullivan County, denying an application for the restoration of the venue of an action to Queens County, its original venue. Respondent John E. Yeomans commenced an action based on an automobile collision occurring on Hew York State Highway 42 south of Montieello, H. Y., against appellant Bernard Malen in Supreme Court, Sullivan County. Thereafter appellant Malen, his wife and minor son, began an action based on the same collision against Yeomans in Supreme Court, Queens County. Subsequently an order was granted consolidating the action ¡brought by the appellants in Queens County with the action brought by respondent in Sullivan Comity. After this order was granted, respondent’s claim was settled and his action discontinued. Appellants then moved to return their action back to its original venue in Queens County. This appeal is brought from a denial of this motion. Appellants urge their motion was not for a change of venue but “to remand” the action to its original venue and that as such was not directed to the discretion of the court below but rather was a matter of right. We do not agree. Whatever denominated, a motion of the type here involved which has as its purpose to change the place of trial is directed to the discretion of the court. Intner v. Morton (1 A D 2d 723) relied on by appellants is inapposite here. Intner holds only that the original venue should be restored where the order of consolidation did not become effective until after a settlement of the companion action had been made and thus after consolidation was no longer possible. Such is not the case here. On the present record we see no reason to disturb the determination of the Special Term. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.