
    Leonard Jacob, Appellant, v. The Town of Oyster Bay and Others, Respondents.
    Second Department,
    May 10, 1907.
    Venue — change of place of trial when impartial trial cannot be had.
    To obtain a change of place of .trial under subdivision 2 of section 987 of the Code of Civil Procedure it is not necessary to show “conclusively” that ah impartial trial cannot be had. in the proper county. The statute authorizes ' a change where there is “reason to believe” that an impartial trial cannot be had in the proper county.
    An experimental trial in the proper county should not be required to determine whether an impartial trial is impossible.
    
      When it is shown that the whole town is arrayed against a plaintiff claiming title to valuable lands against the community, and the struggle for possession has been bitter and protracted, and coupled with physical violence, and the-affair is notorious and the subject of public meetings, comment and agitation, a proper case is presented for .the change of place of trial. '
    Appeal, by- the plaintiff-, Leonard Jacob, from an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of the .clerk of the county of Nassau On the 7tlr day of March, 1907, denying the plaintiff’s motion to change "the place of'trial-of the action..
    
      Charles F. .¡Brown \Origen 8. Seymour and ‘Wilmofi T. Cox with him on the brief], for the appellant.
    
      Malstead Soudder, for the- respondents.
   Jenks, J. :

The learned justice presiding at the Special Term, in the opinion handed do^m upon the-denial of this motion, wrote that the • motion could be granted only when it is conclusively shown that an impartial trial could not be had in the proper county; whereas, the statute is that the place of trial may be changed." where there is reason to believe that an impartial trial cannot be had in the ■ proper County.” (Code Civ. Proc. | 987, subd. 2.) Hence the-decision may have been made upon a mistaken view of the law prejudicial to the plaintiff.

The learned justice also wrote that a trial should be attempted in - the proper county, plainly in- order to show whether the conditions there were adverse to an impartial trial, inasmuch as he wrote that if there was"a disagreement of the jury this application might be renewed. .We do not take this view, for a jury drawn in that county might be so partial as to be unanimous against" the plaintiff, and yet its verdict be unwarranted. In People v. Webb (1 Hill, 179) the .court, speaking of such proof,.say: “To make such an experiment essential would seem to be- quite dangerous. It is the very thing which the' law .seeks to avoid when it is seen that the party may, and probably will be drawn into a trial by a jury who, under an influence of which they may themselves be hardly conscious — an influence which perhaps no human sagacity can detect — may pronounce a verdict against him and conclude his rights forever.” This expression is cited in part with approval hy the court in People v. McLaughlin (150 N. Y. 365, 380).

We are of opinion that a proper case is presented for a change of the place of trial. Practically a town is arrayed against one man in a contention whether the individual or the community owns a piece of valuable land. The straggle for the possession has been bitter and protracted. There have been various litigations; there has been physical violence. The affair is notorious, and the controversy has been a subject of public meeting, of more or less general discussion, and of comment and of agitation both in the local press and in newspapers of a wide circulation, which includes the county. It seems to us that to grant this motion is to remove the trial to an atmosphere clear from possible, contamination, and to afford presumably an equality between plaintiff and the defendant before a jury indifferent as to the personnel of the parties or the result of the verdict. Our conclusion in no way reflects upon the general character of the possible jurors of the county of venue, but we cannot shut our eyes to the fact that upon a matter of such public interest and widespread agitation, involving the direct ownership of valuable realty by an important community in the county, any jurors might have strong feelings or prejudices which unconsciously would sway their verdict. For these reasons we think that the order must be reversed, with $10 costs and disbursements, and the motion granted to change the place of trial to the county of Kings, with $10 costs.

Hirsohberg, P. J., Woodward, Hooker and Hiller, JJ., concurred. ■

Order reversed, with $10 costs and disbursements, and motion granted to change the place of trial to the county of Kings, with $10 costs.  