Foley v. Phelps

257 A.D. 896, 12 N.Y.S.2d 445, 1939 N.Y. App. Div. LEXIS 8315

Opinion

Defendants have appealed from an order of the Albany Special Term of the Supreme Court, denying their motion to change the place of trial of the action from the county of Albany to the county of Niagara. The action is brought to recover damages for personal injuries sustained by plaintiff in the hotel of appellants in Niagara Falls while she was a guest. Defendants assert that they have nine material witnesses residing in Niagara county where the accident happened. Plaintiff is a woman more than eighty-three years of age. According to the affidavit of her physician it would seriously impair plaintiff’s health to travel from Albany to Niagara county for the purpose of trial. Order affirmed, with ten dollars costs and disbursements. All concur, except Hill, P. J., who dissents upon the ground that the cause of action arose in Niagara county; all of the witnesses reside there; the plaintiff’s evidence could be taken by deposition if her health will not permit a trip; but it is unfair to the defendants to require them to cross the State to defend this action.