Dioguardi v. John Hancock Mutual Life Insurance Co. of Boston

250 A.D. 879, 295 N.Y.S. 152, 1937 N.Y. App. Div. LEXIS 9540

Opinion

Order denying petitioner’s application to remove from the City Court of Yonkers to the Supreme Court the action entitled “ Rose Dioguardi, Plaintiff, v. John Hancock Mutual Life Insurance Company, Defendant,” and to Change the Place of Trial to the Supreme^ Court, New York County, reversed on the law, with ten dollars costs and disbursements, and the application granted, without costs. In our opinion it was an improper exercise of discretion to deny the application where it appears that the necessary and material witnesses — except one who resides in Bronx county — to be called by defendant to establish its affirmative defense are residents of New York county, and the City Court of Yonkers has no power to issue its subpoena for service outside the county of Westchester. (Ballon v. Riti, 239 App. Div. 544.) Lazansky, P. J., Hagarty, Davis, Johnston and Taylor, JJ., concur.