Opinion
March 1, 1907.
Samuel J. Rawak, for the appellants.
M.B. Patterson, for the respondent.
This is an appeal by the defendants from an order denying their motion to change the place of trial from Rockland county to New York county. If the motion rested solely upon the convenience of the witnesses, we would not disturb the decision of the Special Term. But the record presents other facts which convince us that the motion should be granted. The action is for breach of two contracts made in the city of New York, to be performed there. Those who made the contracts are engaged in business in the city of New York. It does not appear where they reside. This plaintiff, the assignee of the claim, although a bona fide resident of Rockland county, is engaged in business in the city of New York, and is in the employ of his said assignors. The defendants and all their witnesses are residents of the said city of New York. The plaintiff only shows, in addition to his residence in Rockland county that he proposes to call as a witness himself, another who resides in Orange, N.J., and three others whom he does not name, and whose residence he does not specify, but for whom he says it will be more convenient if they attend in Rockland, although he gives no reasons for the statement, save that they might be required to attend in New York for successive days until the case is reached, while the case can be stipulated for a day certain in Rockland. In Navratil v. Bohm ( 26 App. Div. 460) the motion to change the place of trial from Queens to New York county was made under section 987 of the Code of Civil Procedure, and we held that the court, regarding the ends of justice, properly granted it, not upon the ground of the convenience of witnesses, but because it appeared that the cause of action arose in the latter county; that the defendant had resided there for many years and the plaintiffs also resided there. The sole difference between the features which we thought were controlling in that case and the similar features of the case at bar is that residents of New York county have assigned their claims to a resident of Rockland county, who, however, is engaged in business in the city of New York and in the employ of his assignors.
The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
HIRSCHBERG, P.J., HOOKER, GAYNOR and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.