Reginald D. Taylor and Others, as Executors, etc., of John H. Taylor, Deceased, Respondents, v. Samuel K. Jacobs and Morris Berman, Appellants

Reginald D. Taylor and Others, as Executors, etc., of John H. Taylor, Deceased, Respondents, v. Samuel K. Jacobs and Morris Berman, Appellants. Second Department, May 28, 1915. Trial — change of venue to county where contract was negotiated, and parties reside — residence of expert witnesses. The venue in an action for false representations incident to the sale of realty situated in the county of New York should be changed to that county from the county of Kings, where it appears that all the parties reside in the county of New York, with the exception of one plaintiff as to whom it is not alleged that he will be a witness, and all the negotiations involved in the transaction took place in said county. The rule that the convenience of expert witnesses will not be considered on a motion for change of venue does not obtain where the experts are to testify from personal knowledge and not from an assumed state of facts. Appeal by the defendants, Samuel K. Jacobs and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of February, 1915, denying their motion to change the place of trial. Laurence Arnold Tanzer, for the appellants. William F. Purdy, for the respondents. [MAJORITY — Per Curiam:] Per Curiam: The cause of action is false representations incident to the sale of realty, with reference to certain leases thereon and to the necessary expenses of the maintenance thereof. The realty is situate in the county of New York. It appears that the representations were made, the negotiations were conducted and transactions were carried out in that county. It appears that all of the parties are engaged in business therein, that the office of the plaintiffs as executors is therein, and that all of the participants in the negotiations who are the supposed or proposed witnesses, of whom many are specified, are engaged in business in the said county. The sole justification for the venue of the county of Kings is the residence of one of the plaintiffs. Even as to him, it is not alleged that he is to be a witness, and the allegation of the moving affidavit that he had nothing to do with the transactions involved in this action is not denied. We think that the motion should have been granted, under the authority of Jacobs v. Davis (65 App. Div. 144), Archer v. McIlravy (86 id. 512, 514), Lutfy v. Sullivan (119 id. 506), Pinkus v. United Cloak & Suit Co. (124 id. 535, 536) and Jacina v. Lemmi (155 id. 397). Some of the witnesses named by the defendants are experts. The respondents contend that their convenience is not to be considered. ' This is not the rule when experts are to testify from personal knowledge (as we may infer in this case), and not from an assumed state of facts. (Groff v. Rome Metallic Bedstead Co., 98 App. Div. 152, 154.) The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with costs. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollai's costs.