Opinion
March 8, 1918.
Joseph Rosch of counsel [ Carpenter Rosch, attorneys], for the appellant.
Henry Waldman, for the respondent.
The action was brought to recover for personal injuries alleged to have been sustained by the plaintiff, a passenger on defendant's railroad, in alighting from a train at the station in Parksville. At the place where plaintiff was required to leave the train there was no platform; the ground was rough and uneven and some distance below the step of the car. Plaintiff fell and sustained a fracture of the leg. The defendant claims to have, in addition to its own employees, sixteen witnesses, residents of Parksville, whom it claims it intends to call to prove the condition of the ground at the time and place where the plaintiff fell. Not one of these is claimed to have seen the accident. It is very clear that it will not be necessary to call such a number of witnesses to prove this condition, and it is doubtful if they would be permitted to do so. They seem more necessary for this motion than for the trial. The plaintiff will necessarily call two physicians who have treated her, one eye-witness to the accident, and a surveyor, all of whom live in or near New York city. It would be a great inconvenience and expense for these witnesses to be compelled to go to Sullivan county, while the trains and ferries of the defendant land passengers in the city of New York, and as most of its material witnesses are its own employees, the expense and inconvenience to them of a trial here will be much less than that entailed upon the plaintiff by a trial in Sullivan county. One of the grounds assigned by the learned justice at Special Term for the denial of the motion was that there had been no demand to change the place of trial served. The service of such a demand was not necessary. ( Larkin v. Watson Wagon Co., 68 App. Div. 86.) In the case of Wald v. Persky ( 179 App. Div. 893) cited by the learned justice as an authority upon this point, a like error was made by the justice at Special Term. In that case, as in this, the motion was properly denied on the ground that the convenience of witnesses was not subserved by the change. Our affirmance was without opinion. Thereby, we adopted the result of the Special Term, but not the reasoning of the justice by which he arrived at the result.
The order is affirmed, with ten dollars costs and disbursements.
CLARKE, P.J., LAUGHLIN, DOWLING and SHEARN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.