
    (28 Misc. Rep. 270.)
    BAGLEY v. MUTUAL RESERVE FUND ASS’N. O’BRIEN v. SAME.
    (Supreme Court, Trial Term, New York County.
    June, 1899.)
    Change or Venue—Convenience or Witnesses—Stipulation.
    An application for a change of venue for the convenience of witnesses will not tie granted when the issues to he tried have been referred to a referee by stipulation between the parties, with mandatory directions to take evidence in both counties, at the request of the party interested in having such testimony taken.
    Actions by George A. Bagley and Denis O’Brien against the Mutual
    Reserve Fund Life Association. Motion by defendant to change place of trial from Jefferson county to New York county.
    Denied.
    Elon R. Brown, for plaintiffs.
    W. T. B. Milliken, for defendant.
   RUSSELL, J.

The defendant seeks to remove the place of trial in these actions from the county of Jefferson to the county of New York, on the general ground of the convenience of witnesses and the promotion of the ends of justice. The plaintiffs, Bagley and Judge O’Brien, seek to reinstate certificates of membership of the association, declared forfeited on account of the nonpayment of assessments which the plaintiffs claim were grossly excessive, and beyond the limitations of the contracts by which the plaintiffs were insured. The board of directors of the defendant, under its constitution and by-laws, are said by the counsel for the defendant to have a discretionary power of making assessments upon members of the association to meet the requirements of the company in payment of policies and expenses of doing business, and that such a judgment as to exigencies and amounts is discretionary,—reviewable only by the power of the members to displace the directors at the annual meetings, and elect others who will moré economically and efficiently administer the affairs of the association. If this position be correct, it is difficult to see how the court may investigate the action of the directors in determining the propriety of the various assessments made-for many years, bimonthly or otherwise, and pronounce a judgment in these actions that the defendant shall continue to insure the plaintiffs at a rate which the court deems sufficient to meet the requirements of death losses and expenses. It is not, therefore, apparent upon this motion that the merits of the disbursements made by thé defendant for years back are a proper subject of inquiry, in order to determine whether the plaintiffs have a cause of action. Hence a searching investigation into the books of the company, and the detailed statements of the directors and officers, as witnesses upon the trial, of the merits or demerits of enhanced assessments, do not seem to be required to any such extent as is indicated in the moving affidavits upon these motions. .The plaintiffs rely upon the original contracts under which they claim the expense of maintaining their insurance was definitely fixed and limited. They claim the defendant had no right whatever to add to their assessments beyond the ratios originally established, and rest their right to recover upon that theory. The proof, therefore, would seem to be limited, upon the case as made by the plaintiffs, to an inquiry as to what the original contract was, and whether there had been a breach. I assume there will be very little controversy upon the terms of the original certificates, and the amounts of the subsequent assessments made. If the proof is so limited, the decision of the case becomes the solution of a simple question of law.

Were I satisfied that an investigation of the books of the company at the home office, and the examination of many of its officers, were essential, I should hold that it would be a great hardship to compel the defendant to try this case 300 miles away from the city of Hew York. I am also inclined to think that, even narrowing the evidence as stated, prima facie the defendant would be entitled to a change of place of trial, were it not for one other consideration. It is generally a serious burden for any party to a litigation to be compelled to await and attend a trial in a distant county, and courts should strive to lessen this burden as much as possible, and prevent its being thrown wholly upon the shoulders of one party or the other. The situation in this case is very much relieved by the stipulation of the attorneys, referring the issues to be tried to one of two eminent lawyers of this state, with mandatory direction to take evidence in the counties of New York and of Jefferson, at the request of the party interested to have such testimony so locally taken. Thus, all of- the plaintiffs’ witnesses residing in Jefferson county can be there examined, and those of the defendant at the home office of the defendant, in New York City, where the books can be produced and used without even the burden of transferring them to the county court house in that city. A stipulation designed to relieve hardship and promote justice may be considered upon the hearing of motions like these. Ingal v. Stoddard, 35 App. Div. 539, 54 N. Y. Supp. 813. It is therefore a common-sense view of the situation to leave the parties with such an easy method of producing their evidence, to say nothing of the possible relief to the court. Motion denied, with costs of motion to the successful party to abide the event.

Motion denied, with costs to abide event.  