Patrick A. Cronin, an Infant, by Patrick Cronin, His Guardian ad Litem, Appellant, v. Manhattan Transit Company, Respondent

Patrick A. Cronin, an Infant, by Patrick Cronin, His Guardian ad Litem, Appellant, v. Manhattan Transit Company, Respondent. Second Department, February 28, 1908. Trial — change of venue for convenience of witnesses — demand. The court on motion to change the place of trial for convenience of witnesses may change.the trial to the proper county, although no demand has been made. Appeal by the plaintiff, Patrick A. Cronin, an infant, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered m the office of the clerk of the county of Suffolk on the 26th day of November, 1907, granting the defendant’s motion to change the place of trial from the county of Suffolk to the county of New York. ■1 George S. Wing [George A. Love with him on the- brief]-, for the appellant. _ . ' '■ Balph P. BueTl \_George S. Graham and: Henry W. King, with him on the brief], for the respondent. [MAJORITY — ¡Rich, J.:] ¡Rich, J.: The motion was made to change the place of trial from the county of.Suffolk to the county of ¡New Yorlt for the’ convenience' of witnesses. Upon the hearing it appeared that the- place of trial designated in, the-complaint is not the proper county, and the learned trial justice presiding at the Special Term made an order' changing the place of trial. The learned counsel for the appellant contends that the order was improperly granted and cites Phillips v. Tietjen (108 App. Div. 9) to support his contention. In that " case- no demand was served; in fact no motion Was" made to change-the place of trial. Both parties were ready to try, and were proceeding with the trial of the. case in Queens county when the court, of its own motion, changed the .place of trial:; and 'it was held, upon appeal from the order, that in a transitory action the power did not lie in the, court to change the place of trial irrespective of the wishes of. the parties. .It was not intended -there to hold that where a party comes into court with a motion to change the place of trial for the " convenience of witnesses, the court may not change the place of trial to the proper county, although no demand had been made. We .believe the court to be vested with that power, (McConihe v. Palmer, 76 Hun, 116.) The order must be affirmed, without costs. Jenks, Hooker,. Gaynor and Miller, JJ., concurred. Order affirmed, without "costs.