Goldman v. Isgood Stottville Realty Corp.

14 A.D.2d 759, 220 N.Y.S.2d 491, 1961 N.Y. App. Div. LEXIS 8364

Opinion

While it is the general rule “ that a transitory action, such as this, other things being equal, should be tried in the county in which the cause of action arose ” (Slavin v. Whispell, 5 A D 2d 296, 297), we are impressed by the grave physical condition of plaintiff and the sworn statement of plaintiff’s doctor that to cause plaintiff to travel to Hudson, New York, would seriously impair his health. Furthermore, no explanation is furnished as to why the four other active defendants did not join or take a position in this motion, and the “ rule is that a motion to change the place of a trial of an action for the convenience of witnesses must be made by all the defendants who defend, unless some reason is shown why all did not join ” (Lyman v. Gramercy Club, 28 App. Div. 30, 34). Concur — Botein, P. J., Breitel, Rabin, Valente and McNally, JJ.