Lindsley v. Sheldon

43 Misc. 116, 88 N.Y.S. 192

• Court: New York Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Keneeiok, J.

The defendant, being a resident of Niagara county, the venue was laid in a proper county (Code of Civil Procedure, § 985.) Plaintiff now asks that the place of trial be changed for the convenience of witnesses. Section 987 of the Code authorizing such a change does not limit the right to the defendant. Hnder the old practice, the plaintiff’s right to apply for a change of venue was recognized, but under the rules the method was by an amendment of plaintiff’s declaration. I am of the opinion that the right of the plaintiff to apply for such a change is preserved, but the method is by motion. Pease v. Smith, 3 Lans. 428.

The cause of action arose in Jefferson county. Four material witnesses for the plaintiff (Seymour, William Howard, _ Seeber Hoard and Frank Moran) reside in that county.

Defendant suggests but one witness for the defendant, his wife, who resides in Niagara county.

The parties to the action and expert witnesses cannot, of course, be considered.

Place of trial is changed to Jefferson county.

Application granted.