Kubiac v. Clement

35 A.D. 186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Hardin, P. J.:

The affidavits used upon the motion show very clearly that the cause of action originated in Niagara county, and the preponderance of witnesses apparently necessary to be used upon the trial of the issues reside in Niagara county. A motion was made for the convenience of witnesses, and it was not necessary that it should be made within the ten-day rule laid down in section 986 of the Code of Civil Procedure.

In Glor v. Kelly (25 App. Div. 631) it was held that in a case evenly balanced as to witnesses, the county in which the cause of action originated was an important circumstance tos be taken into account in determining the motion.

The order should be reversed, with ten dollai’s costs, and the motion granted, with ten dollars costs tó abide event.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.