
    William W. Nichols and Clive McK. Nichols, Respondents, v. John B. Riley and Martin V. B. Turner, Appellants, Impleaded with The Mutual Life Insurance Company of New York and Union Mutual Life Insurance Company of Maine, Defendants.
    First Department,
    April 6, 1906.
    TTial — change of place, of trial — waiver of defects in motion — convenience of witnesses — county where cause of action aróse.
    When, on a motion by defendants -to change a place of trial, the. plaintiff has waived defects in the original grounds of the. motion and has consented that-the same be heard on its merits as if made on the ground of the convenience of .witnesses, the plaintiff cannot thereafter on appeal assert the defects waived.
    When the-defendants-have shown that a larger- number of necessary and material witnesses reside in the county to which they desire the trial changed, a condition imposed by the Special- Term, in refusing the change of venue: that the plaintiffs admit the validity of signatures to-certain instruments is not suf-. .ficient to destroy the necessity of . the witnesses, because "a party should not be compelled on such a motion to disclose his evidence to his adversary.
    When-the transactions o.ut.of which the issues arose took place in the county to-which the venue is sought to be transferred, the cause of actión may be said to have arisen in such county, although it involves insurance policies written in another State. '
    • Appeal by the defendants, John B. Riley and another, 'from an order of the Supreme Court, made at the Réw York Special Term and entered in the office of the clerk of the county of Rew York on the 6th day of Eebruary, 1906, as resettled by an Order entered on the 20th day of February, 1906, denying the said defendants’ motion to change the place of trial of the action for the convenience of witnesses from the county of New York to the county of Clinton.
    
      Thomas F. Conway, for the appellants.
    
      Charles K. Allen, for the respondents.
   Pee Curiam :

There were several fatal objections to defendants’ original motion to change the place of trial of this action, amongst them being the fact that the defendants' notice stated that the motion was on the ground that the county of New York was not the proper county, and the further one, that the codefendant, The Mutual Life Insurance Company of New York, not in default, was not served with notice of the application. On the motion coming on for hearing, however, as a condition for adjournment, as the order recites, the plaintiffs waived all technical objections, and consented that the motion be heard upon the merits, as one to change the place of trial for the convenience of witnesses. In addition to this waiver the plaintiffs moved to resettle the original order, which was done on their motion, and the same was entered by them. In view of these acts and stipula-' tions of the plaintiffs we think they are not now in position to urge, for the purpose of sustaining their order of denial, that the appellants’ codefendant, not in default, was not made a party to the motion, or to invoke any other technical objection which’ might have been remedied had the defects been pointed' out.

No affirmative relief is demanded against the defendant insurance companies, but it is alleged that they hold the moneys in their hands until the controversy between the respondents and appellants shall be determined.

On the merits, as a motion to change the place of( trial for the convenience of witnesses, we think the motion should have been granted. The defendants show a larger number of witnesses necessary and material to the matters in' controversy, all residing in the county of Clinton.

The condition imposed by the order, that the plaintiffs should-admit the signatures to certain documents held by appellants, is not effective to destroy the necessity of witnesses, because a party-should not be compelled, before trial on a motion of this character, to disclose his evidence to his adversary. ,

While the sale of the policies took place in the State of Minnesota, the proceeds of which it is alleged the appellants wrongfully claim or hold in trust for the plaintiffs, yet the transactions out of which the issues between the plaintiffs and the contesting defendants arise took place in the county of Clintbn. In that sense, therefore, the cause of action arose in that county, and such fact is always entitled to weight in determining the place of trial. If plaintiffs’ claims are true they can be established in that county in a much shorter time tha-n to await the. course of litigation in the comity of Hew York.

. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial from the county of Hew York to the county of Clinton, on the ground of convenience of witnesses, granted, without costs.

Present —Ingraham, McLaughlin, Laughlin, Clarke and Houghton, JJ.

Order reversed-, with ten dollars costs and disbursements, and motion granted, without costs. Order filed.  