Summary
In Kubiac v. Clement (35 App. Div. 186) it was held that where a case is evenly balanced as to witnesses, the locality in which the cause of action arose is an important element in the determination of an application to change the venue; and it is still more important in a case like this where the witnesses of the moving party out-number those of the other side in the proportion of more than two to one.
Summary of this case from Browne v. Town of Mount HopeOpinion
December Term, 1898.
Frederick Chormann, for the appellants.
F.R. March, for the respondent.
The affidavits used upon the motion show very clearly that the cause of action originated in Niagara county, and the preponderance of witnesses apparently necessary to be used upon the trial of the issues reside in Niagara county. A motion was made for the convenience of witnesses, and it was not necessary that it should be made within the ten-day rule laid down in section 986 of the Code of Civil Procedure.
In Glor v. Kelly ( 25 App. Div. 631) it was held that in a case evenly balanced as to witnesses, the county in which the cause of action originated was an important circumstance to be taken into account in determining the motion.
The order should be reversed, with ten dollars costs, and the motion granted, with ten dollars costs to abide event.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.