Opinion
February 7, 1913.
Walter C. Stevens [ Amos H. Stephens with him on the brief], for the appellant.
H.R. Scoville, for the respondent.
The defendant is engaged in the business of manufacturing wood alcohol and other wood products, with factories situated at various places in Delaware county, and among others, at Elkbrook, in said county.
On May 27, 1912, plaintiff's intestate was employed by defendant as a laborer in collecting logs and transporting them to defendant's factory, and while driving a team of horses attached to a wagon heavily loaded with logs down a steep incline, at or near Elkbrook aforesaid, sustained personal injuries, in consequence of which he died.
In this action, brought to recover damages for the pecuniary injury resulting therefrom, various grounds of negligence are alleged, the principal of which are, supplying decedent with "an improper and imperfect brake or means of blocking the wheels of said wagon while passing down said steep incline," and failure on the part of defendant's superintendent to properly attach a rope to the said load for the purpose of assisting to lower it down said incline.
Defendant answered, denying any negligence upon her part and affirmatively alleging contributory negligence upon the part of decedent, and the assumption by him of open, obvious and apparent risks.
Within nine days after the joining of issue defendant moved to change the place of trial from Kings county to Delaware county, upon the ground that the convenience of witnesses would be promoted thereby. (Code Civ. Proc. § 987.) Upon the merits, defendant was clearly entitled to the relief asked for. The action being transitory in character, the general rule is that the place of trial should be the county in which the cause of action arose. ( Jacobson v. German-American Button Co., 124 App. Div. 251; Pinkus v. United Cloak Suit Co., Id. 535; Neeley v. Erie R.R. Co., 134 id. 781; Studebaker Brothers Co. v. W.N.Y. P. Traction Co., 140 id. 308; Neiman v. Gardner, 145 id. 197.)
Defendant names ten material and necessary witnesses whom she proposes to call upon the trial of the action. All but one of these reside at Elkbrook; he resides at Hazel, Sullivan county. Several of these witnesses, their names being specified in the moving affidavit, defendant alleges will testify that the wagon furnished decedent was in good condition; that the brake shoe was in perfect order, and that decedent himself loosed this brake shoe, thereby causing the accident. One or more of the witnesses also named in the moving affidavit, defendant alleges, will testify that the rope was securely fastened.
The only affidavit submitted in opposition to the motion is made by plaintiff's attorney, and is to the effect that "deponent is informed and believes that the occurrence which resulted in the death of the plaintiff's intestate was witnessed by only two persons besides himself," and that "It is desired on the part of the plaintiff to produce two or more witnesses in support of the plaintiff's claim who reside in the City of New York, and one, and perhaps two, witnesses who live in Delaware County, New York."
This affidavit is entirely insufficient, for it fails to state either the names of the witnesses whom plaintiff proposes to call, or to state the substance of the testimony to be given by them, or to show how it is material. ( McPhail v. Ridout, 83 Hun, 446; Lyman v. Gramercy Club, 28 App. Div. 30; Lyman v. Corey, Id. 623.)
Respondent contends, however, that defendant has waived her right to make this application. Issue was joined on November 18, 1912. On the same day plaintiff noticed the cause for trial for the December term to be held in Kings county, and on the same day and, as defendant now asserts, by inadvertence, a cross notice of trial was served by her attorney. On November twenty-first, and before the making of the motion to change the place of trial, defendant served upon plaintiff's attorney a notice to the effect that she withdrew her cross notice of trial for the December term, and plaintiff's attorney indorsed thereon the following words: "Service of the within notice withdrawing Defendant's Notice is hereby admitted this 21st day of November, 1912." Whether or no this may be a consent upon his part to the withdrawal of defendant's notice of trial, we think that under the circumstances here disclosed it cannot be said that defendant waived her right to move to change the place of trial for the convenience of witnesses. If she had accepted a benefit, such as an extension of time to plead, under an agreement, express or implied, that she would try the action in the county in which it was originally brought, or had obtained a postponement of the trial when regularly reached upon the call of the calendar, a different question would be presented ( Haiz v. Starin, 1 N.Y. St. Repr. 553; Coleman v. Hayes, 92 App. Div. 575; Schaaf v. Denniston, 121 id. 504), but in this case defendant received no benefit, nor has plaintiff's position in any way changed by an inadvertent service of a notice on defendant's part, which, before it had been acted upon, and with great promptness, was withdrawn. There is no suggestion that in the interval between the service of the notice on the eighteenth of November, and defendant's withdrawal thereof on the twenty-first of November, plaintiff had taken any steps to prepare for the trial of the action in Kings county, or that in any other manner his position had been prejudiced.
We think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
JENKS, P.J., HIRSCHBERG, WOODWARD and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.