Opinion
March 15, 1918.
William P. Burr, Corporation Counsel [ Terence Farley and James P. O'Connor of counsel], for the appellant.
A.T. Clearwater, for the respondents.
Upon the case made by the defendant's moving papers it was entitled to an order changing the place of trial to the county of New York. (Greater N.Y. Charter, § 262.) The plaintiffs attempted to meet the motion by a counter-motion to retain the trial in Ulster county, on the ground of convenience of witnesses. There is nothing in the affidavits filed by either party showing what the issue is, and it is conceded that no answer has been served. The plaintiffs' affidavits allege that certain witnesses are necessary as to certain subjects. The defendant's counter-affidavits allege that certain witnesses are necessary for it upon those subjects. Neither side shows in particular what the witnesses named will swear to. The plaintiffs' witnesses and the defendant's witnesses may agree upon many, possibly all of the subjects. From the entire record we are unable to determine whether or not the convenience of witnesses and the ends of justice require that the trial be had in Ulster county. We are not passing upon the question whether a motion to change the place of trial can be made before answer served; we are only holding that in this case it does not appear what the issues will be, or the materiality of the testimony of most of the witnesses named. The order appealed from should be reversed, with ten dollars costs and printing disbursements, and the defendant's motion granted, with ten dollars costs, without prejudice to the plaintiffs' right to move for a change of venue from New York to Ulster county.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to the plaintiffs' right to move for change of venue from New York to Ulster county.