Roberts v. Roberts

The order of July 28, 1917, denying defendant’s motion to resettle the order of July 3, 1917, denying his motion for a change of the place of trial of the action from Orange to Broome county, is reversed; the defendant’s motion to resettle such order by omitting therefrom the following recital, “ and the affidavits of Willison A. Roberts, verified June 15, 1917, of Lizzie Roberts and Wesley Roberts, each verified June 15, 1917, of Raphael T. Medrick, Frank H. Northrup, M. H. Mason and George E. Rosencranse, each verified June 14, 1917, and of Lloyd Stevens, S. A. Cisco, Ella M. Padien, William Lain, Jennie Higby, Gertrude Higby and F. K. Lamereaux, each verified June 15, 1917, and of Fred J. Huegle, verified June 16, 1917,” is granted, and said order, as so resettled, is reversed and the defendant’s motion to change the place of trial to Broome county is granted, upon the ground that plaintiff being a non-resident of the State, and defendant a resident of Broome county, he had the right to have the action tried in the county of his residence, and this right could not be defeated by proof that the convenience of witnesses and the ends of justice would be promoted by retaining the place of trial in Orange county, in which county neither party resided. (Veeder v. Baker, 83 N. Y. 156; Lageza v. Chelsea Fibre Mills, 135 App. Div. 731.) Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ., concurred.