123 Misc. 580 | N.Y. Sup. Ct. | 1934
On the night of November 12, 1923, a closed automobile, owned and driven by one George D. Rose, and in which were also riding William W. Tongate, James W. KeUey, Motye Schneid and Charles Dykeman, accidentally ran off the public highway, and into the Chemung river, at a point in the village of Wellsburg and town of Ashland, Chemung county, near the westerly end of a bridge which there spans the river. Rose and Tongate were drowned. Out of this accident have come seven actions — four for damages in negligence and nuisance, and
We now have motions by the plaintiffs in all these actions to change the place of trial from Chemung county to the county of Steuben or some other convenient county, upon the ground that there is reason to believe that an impartial trial cannot be had in the county of Chemung, and that the ends of justice would be promoted by the change. Civ. Prac. Act, § 187, subd. 2.
In support of the motion there is presented the affidavit of John L. Tongate, administrator of the goods, chattels and credits of William W. Tongate, deceased, Motye Schneid and Charles Dyke-man, each affiant signing and verifying the same affidavit; and the affidavit of James O. Sebring and George A. King, plaintiffs’ attorneys, who reside and practice their profession in Corning in the county of Steuben, and who have also signed and verified the same affidavit. These men all state that in their opinion there is reason to believe.that an impartial trial of these actions cannot be had in Chemung county, and assign as grounds for their belief: First. That three'newspapers, owned and published by the same company in the city of Elmira, immediately after the accident, printed articles purporting to state the facts and discussing the causes of the accident and containing various comments upon it, thereby impregnating every home in the county with their versions of how it occurred. Then follows the charge that these articles contained many misstatements tending to influence the people against the plaintiffs, and to create the impression that the accident was due wholly to the fault and negligence of said Rose and his said passengers, and further, though not directly, that the articles tended to create the impression that these persons were engaged in some illegal or criminal enterprise. Let it be said first, that there being no action here upon the part of the estate of Rose, the driver of the car, it is difficult to see how a statement blaming
In fact, in the light of the facts as they are presented by the pleadings and by the statements of respective counsel on the various arguments that this court has heard, as well as by the briefs and affidavits, these newspaper accounts are unusually accurate and fair.
While it is doubtless true it is proper for a court to consider denunciatory articles, so far at least as their probable effect on the minds of the public is concerned, it must be remembered that they are of no value whatever as evidence of the facts and statements set forth in them, and that, as a rule, citizens who are fit tc try litigated cases will not allow previous opinions based on unofficial reports to control their judgment against the sworn evidence in the case. 27 R. C. L. 816, 823.
Secondly. The affidavits state a belief that fair and impartial trials of these actions cannot be had in Chemung county because plaintiffs have arrayed against them practically the whole of the county with its taxpayers and county officials, all of whom, they charge, are interested financially or otherwise, and that the standing and influence of defendant railroad companies and municipalities and their counsel is such that an impartial jury cannot be obtained.
Standing alone these considerations are not sufficient, either in law or fact, to give rise to a belief that an impartial trial of an action cannot be had in a given county. Lent v. Ryder, 47 App. Div. 415; Weiant v. Rockland Lake Trap Rock Co., 74 id. 24; Noonan v. Luther, 128 id. 673.
An extensive acquaintance by the defendants and business and political prominence and activity on their part, and also professional
There must not only be a belief that these persons have or probably will directly or indirectly do or cause to be done something that will influence a jury or bring about in some manner a condition of public prejudice or excitement against the plaintiffs or their causes of action that will be likely to prevent an impartial trial, but facts justifying such a conclusion must be shown. A suspicion is not sufficient, nor is a certainty required, but the plain rule of the section must be met. De Grasse Paper Co. v. Northern New York Coal Co., supra.
Moved by these considerations, and aware of the rule that it need nob be conclusively shown that an impartial trial cannot be had in Chemung county, but only that there is reason to believe that an impartial trial cannot be had there (Jacob v. Town of Oyster Bay, 119 App. Div. 503), I find as a fact that there are not sufficient facts here to induce a belief that an excitement, prejudice or sentiment with reference to these cases from any cause, or at any time, existed in Chemung county, or prevails now, making it doubtful whether impartial trials can be had.
These observations refer alike to the actions against the coroner, whose absolute right to have the trial had in the county where the cause of action arose is subject to the provisions of the Civil Practice Act (§ 187, subd. 2), under which these motions are brought. People v. Kingsley, 8 Hun, 233.
Motion in the cases against defendant Anderson denied, with costs; in the other cases the motions are denied, with costs to abide the event of the trials.
Ordered accordingly.