Payne v. Eureka Electric Co.

HARDIN, P. J. It is very clear from the appeal book that the contract entered into between the parties in respect to the two engines mentioned in the complaint was made in the city of New York; and it is apparent that the principal transactions which are made the subject of inquiry by the issues of fact joined occurred in the city of New York. In Goodrich v. Vanderbilt, 7 How. Prac. 467, It was held that the place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, unless the preponderance of witnesses is so great as to warrant the court to retain the place of the trial in another county. Sup. Ct. Rule 48 authorizes a party who seeks to change the place of trial to state the nature of tire controversy, and to show how his witnesses are material, and to “show where the cause of action or a defense, or both of them, arose”; and it then provides that “those facts shall be taken into consideration by the court in fixing the place of trial.” We think the special term properly gave weight and force to the circumstance that the cause of action accrued in the city of "New York, and that the principal transactions which are involved in the issue of fact arose in that city and county. 2. Upon an inspection of the pleadings and the affidavits used at the special term, we see there was a substantial conflict in respect to the issues of fact presented by the papers to the special term, and that the special term was called upon to exercise its judgment, as well as its discretion, in determining whether the convenience of witnesses would be best subserved by a trial in the county of Che-mung or in the county of New York. We are not prepared to say that the discretion of the special term, upon all the papers produced there, was abused or improperly exercised. It has been held in numerous cases that the discretion, when exercised, will not be disturbed, “unless it clearly appears that it was improperly exercised.” In Gilbert v. Cart Co. (Sup.) 15 N. Y. Supp. 316, this court held that the discretion of the special term in granting or refusing a motion would not be disturbed, unless it clearly appears that it was improperly exercised; and in Reuben v. Andorsky, Id. 317, we applied the same rule. That rule was also approved in the following cases: Schmidt v. Printing Co. (Sup.) 9 N. Y. Supp. 267; Carpenter v. Insurance Co., 31 Hun, 78; McConihe v. Palmer, 76 Hun, 116, 27 N. Y. Supp. 832; Cromwell v. Romer, 18 N. Y. Wkly. Dig. 440; Fitzgerald v. Payn, 78 Hun, 38, 28 N. Y. Supp. 1033. In Lane v. Town of Hancock (Sup.) 9 N. Y. Supp. 97, it was said: “Unless there has been a plain and evident misuse of such discretion, the decision of the special term must stand.” That rule was quoted and approved in Nelson v. Nelson (Sup.) 21 N. Y. Supp. 287. [659] We have carefully looked into the affidavits and attended to the criticisms made thereon by the appellants; and we are of the opinion that, notwithstanding the criticisms made thereon, the special term was called upon to exercise its discretion and judgment in respect to the convenience of witnesses, and that the result reached at the special term does not indicate any impropriety in the action of the special term or any abuse of its discretion. We, therefore, should affirm its order. Order affirmed, with $10 costs and disbursements. All concur.