Opinion
December 29, 1961
Appeal from an order of the Supreme Court at Special Term, Sullivan County, which changed the place of the trial of the action from Greene County to Schoharie County. This action in which recoveries are sought for wrongful death and conscious pain and suffering arose out of a collision between a locomotive of the defendant railroad, by whom plaintiff's intestate was employed, and a tank truck of the codefendant, operated by one Every, at a railroad crossing near Colliers in Otsego County on February 27, 1959. Plaintiff laid the venue of the action in Greene County. Appellant moved to change it to Otsego County on the ground that the convenience of material witnesses and the ends of justice would be thereby promoted. (Civ. Prac. Act, § 187, subd. 3.) Defendant trucking company has consented to the change. Plaintiff resides in Otsego County. It is asserted that she intends to call Every, a resident of Greene County, as a witness but there is no showing that the change would inconvenience him. To the contrary, the affidavit of the secretary of his employer states that the witnesses whom it will call, which presumably would include the driver of its truck on the occasion of the accident, will be more convenienced by traveling to Cooperstown than to Catskill for the trial. The record establishes that the convenience of several material witnesses of appellant will be promoted by the change sought. The retention of venue in Greene County will not serve the convenience of any of plaintiff's witnesses. In these circumstances the trial should be held in the county where the cause of action arose. We are not persuaded that an impartial trial of the issues could not be had in Otsego County. Since neither party had asked for such relief, the court on its own motion was without authority to change the place of trial to the County of Schoharie. ( Hull v. Trainor, 233 App. Div. 350.) Order reversed and motion granted, with $10 costs. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.