O'Bierne v. Miller, 71 N.Y.S. 946

O'Bierne v. Miller

71 N.Y.S. 946 | N.Y. Sup. Ct. | 1901

Gildersleeve, J.

While the plaintiff was a candidate for Congress in the Richmond county district the defendant published in a Richmond county newspaper an alleged libel. The plaintiff brought this action for damages and laid the venue in Hew York county, of which county plaintiff is a resident. The defendant, makes this motion to change the place of trial to Richmond county, where the cause of action arose, on the ground of convenience of' witnesses. The defendant shows that he himself and eighteen witnesses by whom he hopes to establish his defense live in Richmond county. The plaintiff, on the other hand, shows that he himself and one of his witnesses live in Hew York and that another lives in Greenwich, Conn., and that it would be very inconvenient for them to go to the village of Richmond, Staten Island, where the Richmond County Court House is situated. He also seeks to show that, by reason of its comparative inaccessibility, the village of Richmond is less convenient, even to the majority of the defendant’s witnesses, than is Hew York. He further claims that the testimony of some of defendant’s eighteen witnesses will be merely cumulative and not essential to defendant at the trial. 'Still further does his counsel go in suggesting that a fairer trial could be had in Hew York than in Richmond by reason of the fact that the libel was published in that county and the vast majority of the readers of the libel live there. It is also suggested that the defendant enjoys considerable influence in Staten Island, and might be at an advantage before a jury of residents of Richmond county. However that may be, the main question for me to determine is the convenience of the witnesses as disclosed by the affidavits on this motion. The elaborate affidavit of plaintiff’s witness Jesse C. Schenck, a real estate appraiser, makes out a strong case in support of the claim that Hew York is more accessible and convenient to a large majority of defendant’s own witnesses, who live “ along the northerly edge of Staten Island,” than is Richmond, “ an interior town, located in the central portion of the island and off the line of the steam railroad.” This affidavit is corroborated by that *339of the plaintiff himself, who swears that he has traveled much through the county of Richmond. These allegations as to the relative accessibility of Mew York and Richmond for defendant’s witnesses -are apparently uncontradicted, and defendant seems to rest his claim as to the convenience of witnesses simply upon the fact that eighteen witnesses live in Richmond county. I am inclined to think, in view of the facts disclosed by the affidavits before me, that the ends of justice will be best promoted by denying this application for a change of venue. It is within the discretion of the court to grant or refuse applications of this kind, and, in the case at bar, I think a wise exercise of that discretionary power calls for a refusal. Motion denied. Mo costs.

Motion denied. Mo costs.