Parkill v. New England Furniture & Carpet Co.

211 A.D. 871

Opinion

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event. Held, that the convenience of witnesses who are employees of one party and the convenience of witnesses who are members of the immediate family of the other party, while not necessarily to be entirely disregarded, are usually in effect the same as the convenience of the parties themselves. It is so here. Eliminating the witnesses in those classes, there is no such preponderance for plaintiff as to lead to disregard of the general rule that transitory actions should be tried in the locality where the transactions involved took place. Extraneous facts, irrelevant and inadmissible on the trial, which make an appeal merely to the sympathies of the court, may not ordinarily be considered in arriving at the ends of justice on a motion to change the venue unless a complete denial of justice would follow. The hardship which has frequently existed in such situations as the one here has been materially alleviated by the extension of the right to take depositions under the provisions of the Civil Practice Act. All concur, except Davis, J., who dissents and votes for affirmance.

Present — Hubbs, P. J., Clark, Davis, Sears and Crouch, JJ.