247 A.D. 844 | N.Y. App. Div. | 1936
Appeal from an order made at an adjourned Special Term of the Supreme Court, Washington county, denying defendant’s motion to change the place of trial from Essex county to Kings county, asserted by defendant to be the proper county, as the residence of plaintiff, and granting a cross-motion by plaintiff to retain the place of trial in Essex county, for the convenience of witnesses. The action is brought to recover disability benefits and premiums paid under protest by plaintiff under two policies issued by defendant to plaintiff as the assured, by reason of the disability of plaintiff, caused by tuberculosis and sinusitis, such disability commencing January 15, 1929, and the recovery here sought being from December 15,1930, to the date of the commencement of the action. The question as to the residence of plaintiff presented a controverted issue of fact which has been resolved in favor of plaintiff by the court below. The principal issue to be determined on the trial relates to the physical condition of plaintiff, and most of the witnesses will be physicians. The record does not establish that the convenience of a majority of the witnesses will be served by a change of venue to Kings county, nor that the ends of justice will be promoted by such a change to a county in the metropolitan area. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ.
