71 N.Y.S. 70 | N.Y. App. Div. | 1901
The action was brought in the county of Onondaga to recover damages which the plaintiff alleged that he suffered by being unlawfully ejected from a train of the defendant at a place in the county of Steuben.. A motion was made to change the place of trial to the county of Steuben because of the convenience of witnesses. That motion was granted upon condition that “ if the plaintiff so elects a referee is to be appointed to hear, try and determine the issues herein, with power to take testimony in the county of Steuben and the county of Onondaga.” From the portion of the order imposing this condition the defendant appeals. There is no doubt that the order is appealable. Nor is there any question that the defendant, not having accepted the order, is at liberty to appeal from any part or all of it if it sees fit. (Matter of N. Y. C. & H. R. R. R. Co., 60 N. Y. 112.)
A motion to change the place of trial of an action for the' convenience of witnesses rests largely in the discretion of the court at Special Term. (Lane v. Town of Hancock, 9 N. Y. Supp. 97.) In such a case there is no doubt of the power of the court to impose certain conditions upon granting the order. (Matter of
So much of the ordér, therefore, as has been appealed from should be reversed, with- ten dollars costs and disbursements.
All concurred; Williams, J., concurring in result only.
That portion of the order appealed from reversed, with ten dollars costs and disbursements.