Barnes v. Roosevelt

Per Curiam: The order appealed from denied the motion of the defendant to change the place of trial from the county of Albany to a county to be named by the court. While the record is voluminous, the single question involved upon this appeal is whether there is reason to believe that an impartial trial cannot be had in the county of Albany. When such a conclusion is reached the statute makes it the duty of the court to change the place of trial. (Code Civ. Proc. § 987.) The questions to be determined by the jury relate mainly to the truthfulness or falsity of certain statements made by the defendant regarding the plaintiff, the making of which the defendant will seek to justify. The statements also reflect upon certain departments of the State government, and upon both political organizations in the county. The issues thus involved are largely personal and political and have been the subject of much comment by the parties to the action as well as by the adherents of each. The plaintiff has been a member of the Republican State Committee for the district embracing the county of Albany, the place of his residence, for about twenty years, and has long been generally recognized as very influential in the councils of his party, and in fact as the leader and largely in control of the Republican organization of the county. During such time he has also been in control of the policy of a newspaper of large circulation and influence, in the columns of which, both before and after the commencement of this action, the defendant and his views have been vigorously assailed. While the personal and political activities of the plaintiff have doubtless engendered enmities to a greater or lesser extent, they have also resulted in creating obligations to the plaintiff, strong friendships and a large personal and political following. The defendant, although for periods temporarily sojourning in the county of Albany, has long resided in the county of Nassau at the extreme southerly end of the State, and were the place of trial located in that county and the motion one to change the place of trial from the county of Nassau the statements above made as to the relations of the defendant to his neighbors and other residents of his county would doubtless, to more or less of an extent, be applicable to such motion. Under the statute [542] either county of Albany or Nassau is a proper county to be designated as the place of trial, as being the comity in which one of the parties resided at the time of the commencement of the action (Oode Civ. Proc. § 984), yet in our judgment, under the peculiar circumstances of this litigation, neither party should be compelled to try the action in the county in which the other party resides. Jurors are but individuals and are subject to impressions and influences of which often they are themselves unconscious. The fairness of the trial should be above suspicion, and the place of trial should be one as to which neither party shall have reasonable ground of apprehension as to the strict impartiality of each juror. For the foregoing reasons we think that the order appealed from should be reversed. The determination of this motion is in no wise affected by the allegations in the defendant’s affidavit of possible irregularities or acts of favoritism on the part of any public officer of Albany county. Indeed we think the charges in that regard utterly fail, and the action of this court is based wholly upon the grounds hereinbefore stated. Justice, as far as possible, must be administered without even the appearance of partiality. The place of trial is, therefore, changed to the county of Onondaga. All concurred, except Howard, J., dissenting in opinion.