112 N.Y.S. 898 | N.Y. App. Div. | 1908
The order appealed from changes the place of trial of this action from the county of Saratoga to the county of Schenectady on the ground that an impartial trial cannot be had in the former county. An order like the one in question rests largely in the discretion of the Special Term, but facts and circumstances must appear in the motion papers before such discretion can properly be exercised. The belief of a party in his inability to t procure an impartial trial is insufficient in the absence of facts and circumstances showing such belief to be well founded. (People v. Sammis, 3 Hun, 560; People v. Wright, 5 How. Pr. 23, 27.)
The record herein discloses no facts sufficient to invoke the exer
The learned justice at Special Term based his order largely on the fact that the action has attracted wide attention and has been largely discussed and that its history at Trial Terms and on appeal had been given wide publication by the newspapers of the county. There is nothing, however, to indicate that any unfair or inaccurate statement has ever been published Or that the newspaper statements have been prejudicial to plaintiff. Non constat they have worked to the prejudice of defendant. • Nor is there any pretense that defendant or any one in his behalf has attempted to manufacture public sentiment ,or to publish or promulgate colored- or ■ inaccurate information. (See People v. Sarvis, 69 App. Div. 604.) Even though some people may have formed an opinion, that fact alone does not disqualify them- from acting, as jurors. Plaintiff failed entirely to make out a prima facie case for the order in question.
The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. .
All concurred.
Order, reversed,, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.,