Opinion
November 11, 1908.
Rockwood Scott [ Nash Rockwood of counsel], for the appellant.
Walter H. Cogan, for the respondent.
The order appealed from changes the place of trial of this action from the county of Saratoga to the county of Schenectady on the ground that an impartial trial cannot be had in the former county. An order like the one in question rests largely in the discretion of the Special Term, but facts and circumstances must appear in the motion papers before such discretion can properly be exercised. The belief of a party in his inability to procure an impartial trial is insufficient in the absence of facts and circumstances showing such belief to be well founded. ( People v. Sammis, 3 Hun, 560; People v. Wright, 5 How. Pr. 23, 27.)
The record herein discloses no facts sufficient to invoke the exercise of any discretion on the part of the Special Term. It shows an extensive acquaintance by the defendant and business and political prominence and activity on his part and also professional and political prominence of his attorneys. These facts are insufficient to justify the order. ( Lent v. Ryder, 47 App. Div. 415; Weiant v. Rockland Lake Trap Rock Co., 74 id. 24.) Juries are not likely to be influenced by such unworthy considerations. It sometimes is the case that wide acquaintance and prominence is a disadvantage to the person possessing the same. In this case plaintiff has already procured one judgment against the defendant which was reversed on appeal. ( 119 App. Div. 701. ) It is quite clear that neither defendant nor his counsel exercised any hypnotic or sinister influence over the jury which rendered that verdict. It appears that there has since been another trial in which difficulty was experienced in getting a jury and the jury thus procured disagreed. Neither circumstance is uncommon in the administration of law.
The learned justice at Special Term based his order largely on the fact that the action has attracted wide attention and has been largely discussed and that its history at Trial Terms and on appeal had been given wide publication by the newspapers of the county. There is nothing, however, to indicate that any unfair or inaccurate statement has ever been published or that the newspaper statements have been prejudicial to plaintiff. Non constant they have worked to the prejudice of defendant. Nor is there any pretense that defendant or any one in his behalf has attempted to manufacture public sentiment or to publish or promulgate colored or inaccurate information. (See People v. Sarvis, 69 App. Div. 604.) Even though some people may have formed an opinion, that fact alone does not disqualify them from acting as jurors. Plaintiff failed entirely to make out a prima facie case for the order in question.
The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.