77 A.D. 171 | N.Y. App. Div. | 1902
This action was brought to recover damages for the breach of a contract.
After issue had been joined the defendant moved to change the place of trial from the county of New York to the county' of Albany, upon the ground that the latter was the proper county for the trial of the action, and also for the convenience of witnesses. The motion was granted, as appears from the opinion delivered by the learned justice sitting at Special Term, upon the ground that Albany was the proper county, and the plaintiffs have appealed.
The statute provides (Code Civ. Proc. § 984) that an action of this character must be tried in the county in which one of the parties resided at the commencement thereof. An action must be tried in the name of the real party in interest. The statute (§ 446 et seq.) so provides, and the sense in which the word “ party ” is used in the statute, therefore, manifestly refers to a party to the action, who alone must be considered for the purpose of determining the place of trial. This was substantially held in Seeley v. Clark (78 N. Y. 220) where the court said: “ The words ‘ party to an action ’ * * * include parties to the record and no one else. Such is their legal and ordinary meaning. Mead, the person whose examination was directed, it is conceded, is not one of those parties. That he is a party in interest is not sufficient. He is still1 a person not a party.’ ”
The defendant’s contention, which apparently was adopted by the Special Term, seems to have been that there were others not parties to the action who were the real parties in interest, and that considering their residence, the place of trial ought to be changed. In this we think the Special Term erred. Nor do we think it sufficiently appeared to enable the Special Term to adjudicate thereon, that the plaintiffs were not the real parties in interest, even if that fact could have been considered (which it could not) upon the motion to change the place of trial. Therefore, upon this ground the motion should have been denied.
We are also of the opinion that a proper case was not made for a change of the place of trial for the convenience of witnesses. The place of trial of an action may be changed whenever it is made to appear that the convenience of witnesses and the ends of justice will be promoted by the change. (Oode Civ. Proc. § 987.) But the
This leaves only two other witnesses — the defendant himself and his bookkeeper — and it has many times been held that the place of trial will not be changed to suit the convenience of a party to an action, and we do not think it should be changed to suit the convenience of one witness alone.
It follows that the order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.