Frank E. Mills, Respondent, v. John I. Sparrow and Joseph Smith, Trading as Sparrow & Smith, Appellants

Frank E. Mills, Respondent, v. John I. Sparrow and Joseph Smith, Trading as Sparrow & Smith, Appellants. Second Department, March 19, 1909. Practice—change of venue—speedy trial — convenience, of witnesses. The place of trial of an action will not be changed from a rural county to the county of Mew York or to the county of Kings merely to subserve the convenience of witnesses. This, because the Code requires that the ends of justice be promoted as well as the convenience of witnesses, and the former requirement is best subserved by retaining the venue in a county where a speedy trial can be had. Where a motion to change the venue to the county of Mew York is denied on the grounds aforesaid, it is immaterial that the plaintiff’s opposing affidavit failed to state the names, addresses and occupations of his witnesses or the fact that their testimony is material and necessary. Appeal by the defendants, John I. Sparrow and another, trading as Sparrow & Smith, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 9tn day of November, 1908, denying the defendants’ motion to change the place of trial of the action. S. Marshall Kronheimer [Leonard Bronner with him on the brief], for the appellants. Wilton Bennet, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The action is based upon an alleged breach of contract of hiring, but the pleadings are not among the papers on appeal. The plaintiff is a resident of Orange county and the defendants of Hew York county. . The contract was made in the latter county. The action is brought in Orange comity, and the appeal is from an order denying the defendants’ motion to change the place of trial to the county of Hew York on the ground of' convenience of witnesses.- In denying the motion the learned justice at Special Term followed the practice settled in this department for more than a century. The rule was recently reiterated in Quinn v. Brooklyn Heights R. R. Co. (88 App. Div. 57) and is, as stated in the head note, that “ The place of trial of an action will not be changed from a rural county to either the county of Hew York or the county of Kings, merely to subserve the convenience of witnesses.” In that case the cause of action arose in Kings county, to which county the venue was sought to be changed, but that fact was not regarded as of sufficient weight to overcome the long-established practice. In order to justify a change of the place of trial the Code of Civil Procedure (§ 987) requires that the ends of justice will be promoted, ■ as well as the convenience of witnesses, and it has always been held in this department that the ends of justice are best subserved in that venue where a speedy trial can be had. The plaintiff alleged in his affidavit, read on the motion that he had a number of witnesses residing in the county of Orange, but the appellants claim that that fact could riot be regarded, inasmuch as the names, addresses and occupations are not given, nor is it stated that plaintiff is advised by counsel that the testimony of siich witnesses is material and necessary. The omission does not constitute a defect if the alleged convenience of witnesses is not to control. As was said by the former General Term in this department in Tuthill v. Long Island R. R. Co. (75 Hun, 556, 557), “ a cause upon the calendar of a country Circuit can always be set down for trial for a day when it will be reached and tried. In that way the convenience of witnesses is best subserved, even though they all reside in the city in which the trial is sought to be had.” The order should be affirmed, with ten dollars costs and disbursements. Woodward, Jenks, Rich and Miller, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.