Kubiac v. Clement
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Frank M. Clement and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of March, 1898, denying the defendants’ motion to change the place of trial of the action from Erie county to Niagara county, on the ground of convenience of witnesses.
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Appeal by the defendants, Frank M. Clement and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of March, 1898, denying the defendants’ motion to change the place of trial of the action from Erie county to Niagara county, on the ground of convenience of witnesses. The action was brought to recover damages for the falling or caving in of a sewer in Niagara Falls, Niagara county, in which the plaintiff was at work for the defendants.
1Opinion of the Court
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…
2Cited by4 opinions
- Archer v. McIlravyAppellate Division of the Supreme Court of the State of New York · 1903
- Browne v. Town of Mount HopeAppellate Division of the Supreme Court of the State of New York · 1902
- Larocque v. ConhaimNew York Supreme Court · 1904
- Weidenfeld v. McClureAppellate Division of the Supreme Court of the State of New York · 1903