
    Charles W. L’Amoureux, Respondent, v. Erie Railroad Company, Appellant.
    
      Change of venue for the convenience of witnesses—the court has no power, as a condition thereof, to require the moving parrty to consent to a reference.
    
    Where an action is brought in Onondaga county to recover damages for- the unlawful ejection of the plaintiff from one of the defendant’s trains in Steuben county, the court, on granting the defendant’s motion to change the place of trial from.Onondaga county to Steuben county, for the convenience of witnesses, has no power, as a condition of granting the motion, to provide: ‘'If the plaintiff so elects, a referee is to be appointed to hear, try and determine the issues herein, with power to take testimony in the county of Steuben and the county of Onondaga.”
    
      Appeal by the defendant, the Erie .Railroad Company, from so much of an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 20th day of March, 1897, granting defendant’s motion to change the place of trial of this action from the county of Onondaga to Steuben county, as provided that said motion should be granted “ upon condition that if the plaintiff so elects a referee is to be appointed to hear, try and determine the issues herein;, with power to take testimony in the county of Steuben and the county of Onondaga, such referee to be agreed upon by the attorneys for the respective parties herein, and in default of such agreement the referee to. be named by the justice of this court-before whom this motion is made, upon not less than five days’ notice to other party, with ten dollars costs to abide the event.”
    
      Adelbert Moot and William 3. Stanley, for the appellant.
    
      Wales db Riley, for the respondent.
   Rumsey, J.:

The action was brought in the county of Onondaga to recover damages which the plaintiff alleged that he suffered by being unlawfully ejected from a train of the defendant at a place in the county of Steuben.. A motion was made to change the place of trial to the county of Steuben because of the convenience of witnesses. That motion was granted upon condition that “ if the plaintiff so elects a referee is to be appointed to hear, try and determine the issues herein, with power to take testimony in the county of Steuben and the county of Onondaga.” From the portion of the order imposing this condition the defendant appeals. There is no doubt that the order is appealable. Nor is there any question that the defendant, not having accepted the order, is at liberty to appeal from any part or all of it if it sees fit. (Matter of N. Y. C. & H. R. R. R. Co., 60 N. Y. 112.)

A motion to change the place of trial of an action for the' convenience of witnesses rests largely in the discretion of the court at Special Term. (Lane v. Town of Hancock, 9 N. Y. Supp. 97.) In such a case there is no doubt of the power of the court to impose certain conditions upon granting the order. (Matter of Waverly Water Works Co., 85 N. Y. 478.) So long as those conditions involve only the conduct of the action and matters of procedure which the court would have the power to regulate ; such as the taking of testimony de lene esse; requiring a stipulation to be made as to certain facts, or the imposition of motion costs, there is no doubt that they rest largely in the discretion of the court and the imposition' of them will, not usually be reviewed. But where the court undertakes as a condition of granting the order to require a party to stipulate away an absolute right which is substantial in its nature, it goes outside of its power. The right of trial by jury in an action of this kind is absolute, and it is one of which a party cannot be deprived in the discretion of a judge (Kain v. Delano, 11 Abb. Pr. [N. S.] 29), and actions cannot be sent to a referee for trial without the consent of the parties except in cases where the statute expressly authorizes it. The court has no power to impose as a condition of granting a favor that the party should waive this constitutional right.

So much of the ordér, therefore, as has been appealed from should be reversed, with- ten dollars costs and disbursements.

All concurred; Williams, J., concurring in result only.

That portion of the order appealed from reversed, with ten dollars costs and disbursements.  