Joseph Kubiac, Respondent, v. Frank M. Clement and Others, Appellants

Joseph Kubiac, Respondent, v. Frank M. Clement and Others, Appellants. Motion to change the place of trial for the convenience of witnesses — when determined in favor of the county in which the cause of action arose. Where, on a motion to change the place of trial of an action on the ground of ' convenience of witnesses, the case is evenly balanced as to witnesses, the county in which the cause of action originated is an important circumstance to be taken into account in deciding the motion. Appeal by the defendants, Frank M. Clement and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of March, 1898, denying the defendants’ motion to change the place of trial of the action from Erie county to Niagara county, on the ground of convenience of witnesses. The action was brought to recover damages for the falling or caving in of a sewer in Niagara Falls, Niagara county, in which the plaintiff was at work for the defendants. Frederick Chormann, for the appellants. F. R. March, for the respondent. [MAJORITY — Hardin, P. J.:] Hardin, P. J.: The affidavits used upon the motion show very clearly that the cause of action originated in Niagara county, and the preponderance of witnesses apparently necessary to be used upon the trial of the issues reside in Niagara county. A motion was made for the convenience of witnesses, and it was not necessary that it should be made within the ten-day rule laid down in section 986 of the Code of Civil Procedure. In Glor v. Kelly (25 App. Div. 631) it was held that in a case evenly balanced as to witnesses, the county in which the cause of action originated was an important circumstance tos be taken into account in determining the motion. The order should be reversed, with ten dollai’s costs, and the motion granted, with ten dollars costs tó abide event. All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.