Kubiack v. Clement

54 N.Y.S. 773

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 10-day rule laid down in section 986 of the Code of Civil Procedure. In Gior v. Kelly (decided by this court Jan., 1898) 50 N. Y. Supp. 1127, 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 to be taken into account in determining the motion.' The order should be reversed, with $10 costs, and the motion granted, with $10 costs to abide event.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide the event. All concur.