Stein v. American Federation of Photo Employees

3 A.D.2d 625, 157 N.Y.S.2d 1008, 1956 N.Y. App. Div. LEXIS 3444

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1956
• Status: Published

Opinion

Defendant appeals from an order of the Supreme Court, which denied defendant’s cross motion to change the place of trial from Sullivan County to New York County. The motion sought the change on two grounds: (1) that neither of the plaintiffs or the defendant resided in Sullivan County and therefore Sullivan County was not a proper county; and, (2) the convenience of material witnesses and the ends of justice require the change of venue. Apparently plaintiffs reside in Sullivan County for a part of each year and in Bronx County for a part of each year. It appears without dispute that plaintiff Ronald Stein registered and voted in Sullivan County in 1954, and that plaintiff Irving Stein was registered to vote in Sullivan County in 1954, before the commencement of this action. The moving papers present a sharp conflict as to which county was the bona fide residence of the plaintiffs, and the issue becomes one of veracity. The plaintiffs swear that they are, and have been for a substantial time prior to the commencement of the action, residents of Harris, Sullivan County, New York. Under these circumstances the court below was not bound to accept affidavits tending to establish the contrary. The Special Term properly denied the change on the second ground urged because of the inadequacy of the moving papers. The papers fail to disclose the names or addresses of the witnesses whose convenience might be served or the substance of any testimony which they will give. Order affirmed, with $10 costs. Foster, P. J., Bergan, Coon and Gibson, JJ., concur.