Archer v. McIlravy

86 A.D. 512, 83 N.Y.S. 727, 1903 N.Y. App. Div. LEXIS 2403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinion

Hirschberg, J. :

The action is brought to recover damages for the alleged unlawful arrest of the plaintiff at the instigation of the defendant. The defendant resides in Putnam county, the arrest took place there, the asserted offense upon which the arrest was based was committed there, the arrest was effected by the officials of that county, and all the material witnesses, excepting the plaintiff and another person who is plaintiff in a similar suit, arising out of the same transaction, reside in Putnam county. On the face of the matter it is, therefore, apparent that the change of venue from the county of West■chester, where the action was brought, to the county of Putnam is justified both for the convenience of witnesses and because the cause ■of action arose in the latter county. (Payne v. Eureka Electric Co., 88 Hun,. 250 ; Kubiac v. Clement, 35 App. Div. 186 ; Hedges v. Bemis, 38 id. 349 ; Jacobs v. Davis, 65 id. 144 ; Browne v. Town of Mount Hope, 73 id. 599.) Indeed, as the court said in Jacobs v. Dmis {supra, 145): “ It has become to be recognized that as a general rule in transitory actions, the case should be tried in the locality where the transactions involved in the controversy took place, unless a large preponderance of the witnesses live in a different locality.”

The learned counsel for the appellant claims that, an impartial trial cannot be had in Putnam count)'. In support of this assertion nothing is presented but the plaintiff’s opinion, which appears to be based upon the fact that the arrest grew out of an alleged interference with the property of the Oscawana Lake Outing Club, of which club many of the officials and other prominent citizens of Putnam county are members. There can surely be no difficulty in securing a jury wholly free from improper influence, and an assumption' to the contrary because of the fact suggested by the.plaintiff would seem to involve an unwarranted aspersion both upon the county and the trial court. The case of Tuomey v. Kingsford (68 App. Div. 180) was very different, in . that there the defendant’s agent had boasted that he could defeat a fair trial by the change of venue.

The appellant further claims that the residence of the respondent’s witnesses is such that the county seat of Westchester is as convenient of access as or more so to them than the county seat of Putnam. Assuming that it were proper to consider this suggestion on review of an order granting a change of the place of trial, the fact should be borne in mind that the convenience of witnesses is not exclusively subserved by considerations of accessibility, but that the condition of the calendar and the duration of the: terms are equally relevant. The getting away from the court house is at least as important to the: witnesses as the getting to it. In Carmel the terms .of court are known to last but a day or two, while at White Plains they are protracted for weeks; and in view of the relative time during which the enforced attendance of witnesses would probably be required at the respective Trial Terms, there can be no doubt as to the matter • of convenience aside from the mere distance to be traveled.

The order should be affirmed.

Bartlett, Woodwaed, Jenks and Hooker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.