Opinion
December 2, 1921.
Charles E. Norris, for the appellants.
Russel S. Johnson and W.J.B. Williams, for the respondent.
This is an action for damages for unlawfully cutting timber and is governed by section 982 of the Code of Civil Procedure. When such action is commenced in a county other than the one where the land is situated, the place of trial should be changed upon motion to the proper county. ( Freeman v. Thomson, 50 Hun, 340; Dexter v. Alfred, 35 N.Y. St. Repr. 489.) Upon this motion the plaintiff should not have been permitted to read affidavits tending to show that the county where the venue is laid is more convenient for witnesses, even if she would have had the right to do so if she had served the notice provided by section 768 of the Code of Civil Procedure, as such notice was not served. After the venue has been changed to the proper county, the plaintiff may move under section 987 of the Code of Civil Procedure for a change of venue for the convenience of witnesses. ( Sylvester v. Lewis, 55 App. Div. 470; Veeder v. Baker, 83 N.Y. 156.)
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
All concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.