Bowles v. Rome, Watertown & Ogdensburg Railroad

Davis, P. J.: This action is brought by the plaintiff to recover damages as administrator of the estate of Amelia Boose, deceased, for an injury caused by a collision on the defendant’s road which resulted in her •death. The plaintiff was a resident of the State of Pennsylvania. The defendant is a corporation of this State operating a railroad running through several counties of the western part of the State. The cause of action arose in the county of Orleans, where the injury which caused the death of the plaintiff’s intestate and her death ■occurred, and the plaintiff was appointed administrator by the .surrogate of that county. All the witnesses on the part of the ^ plaintiff reside in the State of Pennsylvania except one who resides in the State of New Jersey. The affidavits on the part of the defendant show that eight of its witnesses reside in Oswego county, five in Orleans county, one in Onondaga county and two in Monroe •county. The action should not have been brought in the Superior Court ■of the city of New York, nor, if brought in the Supreme Court, .•should the place of trial have been laid in this city. (Code, § 984.) It would seem that the action was brought in the Superior Court for the purpose of depriving the defendant of its right to demand that the trial be had in the proper county as provided by the Code ■(§§ 985, 986). Perhaps the only remedy it had was by this motion to remove the cause to the Supreme Court for the purpose •of changing the place of trial under section 269 of the Code ; and as this motion is made to change the place of trial solely on the ground of convenience of witnesses, it is not necessary to consider whether the defendant could be deprived of the right of demanding a trial in the proper county by the act of the plaintiff in bringing the action in the Superior Court. Under 'the well [509] settled rules of practice the fact that the plaintiff has material witnesses residing in other States, who can more conveniently come to the city of New York than to the county of Oswego, is no answer to the motion. (New Jersey Zinc Company v. Blood, 8 Abb., 147; Canfield v. Lindley, 4 Cowen, 532; Bank of St. Albans v. Knickerbacker, 6 Wend., 541; Peet v. Billings, 2 id., 282.) These cases were followed in Hill v. Chambers (N. Y. Daily Reg., Dec. 26, 1883), by Mr. Justice Lawrence, in which he said: <£ The convenience of witnesses for the defendant, who reside in the State of New Jersey, cannot be considered in determining this motion.” (N. J. Zinx Co. v. Blood, supra; Center v. Furman, Daily Reg., March 22, 1878.) The reason of the rule seems to have been that the attendance of the witnesses could not be compelled by the process of the court, and a commission might be necessary to examine them. The plaintiff, therefore, made no answer to this motion because all his witnesses were non-residents of the State, and were not, under the rule just referred to, to be considered at all upon the motion, and because after all allowance for the offer to admit what the witnesses on the part of the defendant would testify to, there still remained quite a number of witnesses who resided at and near the county of Oswego, to which it was desired to change the place of trial. But on looking at the proposed offers of admission, they are not broad enough to meet the facts sought to be proved by the testimony of the several witnesses, and therefore they should not have operated to prevent the granting of the motion. We think the order should be reversed, and an order made granting the motion to remove the cause to the Supreme Court, and to change the place of trial to^the county of Oswego, and that the costs of the motion below, and of this appeal, should abide the event of the action and be paid to the successful party. Brady and Daniels, JJ., concurred. Order reversed and motion granted; costs of the motion below, and of this appeal, to abide the event of the action.