Holland v. New York City Railway Co. ( 1905 )

SMITH, J.

Defendant claims to have shown that the convenience of 10 witnesses will be subserved by the change of trial asked for. Some of these 10 witnesses are the defendant’s employés. Three of them were passengers upon the car at the time of the accident, three of them were pedestrians upon the street, and one was a policeman, who claims to have seen the accident. In opposition to the motion, it is shown that the plaintiff was riding with his chauffeur and his wife. It is not stated that he intends to produce his wife as a witness upon the trial of the action. The plaintiff has also attempted to impair the force of the defendant’s position by showing that some of the witnesses, for whose convenience the change of venue is asked, cannot be found at the addresses given in the defendant’s affidavits; that others will not swear for the defendant as it is claimed; that still others are willing to come to Albany upon the trial of the action, provided their expenses are paid. Of the latter class the plaintiff will stipulate to pay the expenses of two of them to Albany. Without discussing in detail the convenience of the several witnesses, it is apparent that the convenience of substantially all of the witnesses will be subserved by the holding of this trial in the city of New York. The offer of the plaintiff to pay the expenses of two of the witnesses could hardly be accepted by the defendant, which would in such case be in a position of swearing witnesses in its behalf who were receiving favors from the plaintiff in the payment of their expenses. The expert witness, so called, having seen the machine so that he will be able to swear to the extent of damage, is not an expert within the meaning of that term as used in the cases which refuse to change the.place of trial for the convenience of expert witnesses. The evidence for the plaintiff of the damage done to the machine must in all probability come from New York City, where the machine was stored after the accident, and where it was probably repaired. At least there is no claim of any witnesses in the county of Albany who will swear on behalf of the plaintiff as to the extent of damage caused by the accident. The situation is thus presented of an accident happening in the city of New York, where all the witnesses to the accident and to the extent of the injury reside, except the plaintiff and his chauffeur. It would seem to present a clear case where the discretion of the court should be exercised in directing that the trial proceed in the county of New York.

Upon the argument the plaintiff strongly urges that by reason of the crowded calendars in New York City the trial will be longer delayed, and that it is the practice of the courts to refuse to send an action for trial to the county of New York by reason of the crowded condition of the calendars of the courts. It is probably true that by reason of this fact the courts will req'uire a stronger case for the removal of the trial of an action to New York county than to other counties where the calendars are not so congested. A stronger case could hardly be presented for the removal of an action from an interior county to the county of New York. The decisions of the courts have never gone to the extent of holding that the venue of actions will not be changed to New York county from counties so far distant from New York as is Albany county where a strong case is presented for such change. We are of the opinion that this action should be tried in the county of New York, and that this order should be reversed.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide the event of the action. All concur.