Smith v. Flagg

Senn, J.

Plaintiff, who lives in Chenango county, sues the defendant, a dentist at Auburn, Cayuga county, to recover damages alleged to be due to the negligence and lack of skill of the defendant in attempting to remove an impacted tooth for the plaintiff. The operation in question took place at the defendant’s office in Auburn, the conditions which plaintiff complains of were treated at Norwich, Chenango county, almost immediately after the operation in Auburn.

Despite the proffered concession, it is quite evident that, aside from the parties to the action, the majority of the witnesses reside in Chenango county. The only witness for the defendant living in .Cayuga county, who is likely to be sworn, is Dr. R. Burns Avery, a dentist who was present at the operation in the defendant’s office. He ought to be willing to go to Norwich as a witness for his fellow dentist. Defendant asserts that Dr. Dunne, of Norwich, named in plaintiff’s affidavits as a witness for him, will in reality be a witness for the defendant, and is willing to go to Auburn for that purpose. That being so, he naturally will not object to going to court in his home town, where his testimony would be more potent than in a distant county. •

In a sense, the cause of action did not altogether arise in Cayuga county. The operation was there, but the alleged immediate developments were in Chenango county.

An order may be prepared denying the motion to change the place of trial, with ten dollars costs to the plaintiff to abide the event of the action.