John P. Tuomey, Appellant, v. Thomas P. Kingsford, Respondent

John P. Tuomey, Appellant, v. Thomas P. Kingsford, Respondent. Venue—not changed for the convenience of witnesses where a fair trial cannot he had in the county where they reside. A motion by a defendant, to change the venue of an action to the county of the defendant’s residence for the convenience of witnesses, should not be granted where it appears that during negotiations for a settlement of the controversy the defendant’s agent stated that the suit would have to be brought' in the county of the defendant’s residence, and that owing to the prominence of the defendant and his family any jury sworn in that county would be materially •prejudiced in his favor. Appeal by the plaintiff, John P, Tuomey, 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 16th day of September, 1901, granting the defendant’s motion to change the place of trial of the action from the county of Kings to the county of Oswego. Paul E. De Fere [ Wilbur L. Ball with him on the brief], for the appellant. H. L. Howe, for the respondent. [MAJORITY — Goodrich, P. J.:] Goodrich, P. J.: The defendant moved for a change of venue from Kings county to Oswego county, stating in the notice of motion that it was made “ for the convenience of witnesses and that the ends of justice may be promoted,” using the language of subdivision 3 of section 987 of the Code of Civil Procedure. The court granted the motion,, and the plaintiff appeals. In Litchfield v. International Paper Co. (27 Misc. Rep. 8) Mr. Justice Gaynor said : “ The statute couples together the two things as one.” The decision was reversed by this court (41 App. Div. 446), but not upon the point stated. The answering affidavits contained no denial of the allegations of the moving affidavits that the convenience of witnesses required a change of venue, but they contained an allegation that Ehrehart, the defendant’s agent in certain negotiations looking to a settlement of the controversy, with a view to influencing the plaintiff’s decision, said: “ That he had considered the legal aspect of the case and had reached the conclusion that suit upon the contract would have to be brought in Oswego County, the home of the defendant. This point he urged with great vigor as a reason why a, liberal allowance should be allowed to the defendant, stating in explicit tei‘ms that he was positive that no jury in the County of Oswego would render a damaging verdict against the defendant, if it were possible not to do so. He stated that he was so convinced of this fact that, unless he were confident that suit upon the contract would necessarily have to be brought in Oswego County, he would be prepared to consider terms of settlement much more favorable to the plaintiff. He further stated in detail the reasons why he felt confident that a jury in Oswego County would be materially prejudiced in favor of the defendant; that the defendant had lived in the Town of Oswego all of his life, as had his father and grandfather before him. That he had been prominent in all local enterprises and local charities, and that, he had always been an extensive employer of labor, and was popular with the working people '■¡throughout the county. That in a contest between him and some jperson from out of the county there could be no question but that any jury would be materially prejudiced in defendant’s favor.” This affidavit was not contradicted and we may assume its ¡truthfulness. ' Thus wé are called upon to say whether it is proper to change a venue for the convenience, of witnesses, on the motion of a party who has boasted, or at least intimated, that he can defeat a fair- trial by such change. Evidently, “ the ends of justice will not be promoted by the change ” from a county where it is not questioned that an impartial trial can be had to a county where, according to the defendant’s statements, an impartial trial cannot be had. It is no answer that the plaintiff can move in OsWego county, to have the venue rechanged, to Kings county. The plaintiff should mot be put to the expense and labor of such a motion where it is evident that in the orderly administration of justice the same result -would follow as would have followed a denial of the- motion. The order should be reversed. - .All concurred. Order reversed, with ten dollars costs and disbursements.