
    CORDAS v. MORRISON et al.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Change op Venue—Convenience op Witnesses.
    The complaint in an action brought in O. county, where plaintiff resided, alleged that while plaintiff was on defendant’s premises, in A. county, at the request of defendant’s foreman, for a proper purpose, he fell into a hole carelessly left unguarded, and was injured. Defendant denied all the allegations of the complaint, and moved for a change of venue to A. county, for convenience of witnesses. The moving affidavit stated that defendant’s foreman did not request plaintiff to come on the premises, but that on the day of the alleged accident he voluntarily came there, and went away uninjured. The affidavit further stated that a number of workmen were at the time alleged employed about the hole into, which plaintiff claimed to have fallen, and if plaintiff had fallen they would have seen it. Thirteen resident witnesses were named as necessary to prove the facts stated. The opposing affidavit stated that plaintiff’s poverty made it practically impossible for him to proceed to trial if the cause were removed to A. county, and offered to stipulate that the facts stated in the moving affidavit were true, if the cause should be retained in O. county. Held, that it was error to refuse the change of venue on such stipulation, since it was either an admission that plaintiff had no cause of action, or it was made with the intent of showing at the trial that the accident occurred on a different day, or in a different hole, from those named.
    Appeal from special term, Ontario county.
    Action by Frederick Gordas against James Morrison, James Col-well, and Edward M. Page. From an order denying a motion made on behalf of defendants to change the place of trial from Ontario to Albany county, defendants appeal.
    Eeversed.
    Argued before DWIG-HT, P. J., and LEWIS, MACOMBEE, and HAIGHT, JJ.
    Charles F. Doyle, for appellants.
    Spencer Gooding, for respondent.
   LEWIS, J.

This action was commenced on the 21st day of June, 1892, to recover damages for injuries which the plaintiff alleges in his complaint he sustained by falling into a hole in the rolling mill of the defendants, in the city of Cohoes, Albany county, on or about the 5th day of January, 1892. It is alleged in the complaint that the plaintiff went into the mill on said occasion at the request and suggestion of one of the foremen or managing workmen of the defendant, in the daytime, for a legal and proper purpose, and while so upon the premises he fell as aforesaid, and charges that the accident occurred, and was caused, by the carelessness and negligence of the defendants, in allowing the hole to remain unprotected and unguarded. All the allegations of the complaint were put in issue by the defendants’ answer. Ontario county was designated as the place for the trial of- the action. The defendants moved, upon the pleadings, and the affidavit of E. N. Page, for an order changing the place of trial from Ontario to Albany county, for the convenience of witnesses. The affidavit contained all the formal requisites required for a change of venue. Thirteen different witnesses were mentioned, who would be necessary witnesses for the defendants upon the trial of the action, 12 of whom were residents of the city of Cohoes, county of Albany, and the other residing within two miles of that city, in another county. The affidavit fully stated what was expected to be proved by the different witnesses named, and, among other things, that Joseph Eavenscroft and E. N. Page are the only foremen and managing workmen of the defendants, and of their rolling mill, and that Andrew Benson is the only foreman of common, unskilled laborers around said rolling mill, or employed therein, and that the plaintiff did not, at the request or suggestion of either of said persons, enter upon the premises of the defendants for any purpose whatever; that'on the morning of January 4, 1892, the plaintiff came to the rolling mill of the defendants, without invitation or suggestion, and solicited work in the mill, and that he was informed they did not need help; that he then left the premises, without meeting with any accident; that on the succeeding morning, January 5th, he called again, and inquired of Eavenscroft for work, and Eavenscroft replied they had none, but said he would go with the plaintiff to Andrew Benson, who had charge of the' common, unskilled laborers, arid inquire if he needed any help, and that the plaintiff accompanied Eavenscroft to Benson, in another part of the mill, and was there informed by Benson that they needed no help; and that the plaintiff immediately thereafter went out of the mill, and did not receive any injury on that occasion. Three witnesses are mentioned who will testify that they heard the plaintiff say, in a conversation in January, 1892, that he had received some slight injuries in defendants’ mill, but that he was not asked or invited by any one to go in the mill, or on the premises, and did not go there at the request or suggestion of any one of the foremen or managing workmen of defendants’ mill; that he went there of his own free will and accord; and that he was there without leave, license, or authority,—and stated that the hole into which he fell was at or near the furnaces used for molding purposes by nine employes of the defendants. These employes are stated in the affidavit to be necessary witnesses to prove that they were at work for the defendants in the mill on the 5th day of January, 1892, within a very few feet of the opening into which the plaintiff claimed to have fallen, and that if the plaintiff had fallen into the hole, as claimed, they would have seen it, and that it did not occur. The affidavit states that Joseph Eavenscroft and E. 1ST. Page are the only foremen and managing workmen of the defendants, but fails to state who were the foremen and managing workmen in January, 1892, at the time of the alleged accident. The plaintiff’s affidavit was read in opposition to the motion. It stated that for 12 years prior to the 2d day of March, 1892, he had been continuously a resident of the city of Cohoes, Albany county; that on that day he removed to, and became a resident of, the village of Canandaigua, Ontario county, E. Y.; that he is a poor man, and has no means, except what he earns at his daily labor, by Ms trade; and that if the place of trial is changed to Albany county it would be almost impossible to bring his action to trial, for the reason that he is informed and believes that the circuit calendars of Albany county are large, and that the case would not probably be reached in that county for at least a year. The affidavit also stated “that if the trial of said cause is allowed to remain in Ontario county he is willing to stipulate that the facts which the defendant states, in his affidavit served with the notice of motion here, he expects to prove by the witnesses named therein, are true,—said stipulation to be used on the trial of said action,— and that said defendants need not produce in court any witnesses to prove said facts so stated.” The defendants’ motion was denied upon the condition that the plaintiff give the stipulation referred to, and thereupon the plaintiff made the stipulation reciting that, a motion having been made to change the place of trial, “it is hereby stipulated on the part of the plaintiff that the facts which the defendant E. N. Page, in his affidavit upon wMch said motion is founded, expects to prove by the witnesses named in said affidavit, are true, and will be admitted upon the trial of this action, if the place of trial be retained in Ontario county.”

If the accident happened on the 5th day of January, 1892, on the occasion when the plaintiff was at the works and met Joseph Eavenscroft, and he fell into the hole described in Page’s affidavit, or if the admissions mentioned in the affidavit, as made by the plaintiff, were a trite recital of what happened at the time of the accident, in either case the plaintiff has no legal cause of action against the defendants, and the trial must inevitably result in a dismissal of his complaint; and there is no justice or propriety in requiring the defendants to attend court at Canandaigua, with their counsel, to go through the formality of dismissing the complaint. But if, on the other hand, the plaintiff has an undisclosed purpose of fixing the time and occasion of the accident on some other day than the 5th of January, as he would probably have the right to do, as it is alleged in his complaint that the accident happened on or about the 5th day of January, 1892, or, if he intends to claim that he was invited to enter the works by some other person than Joseph Eavenscroft, and on some other occasion, and intends to claim that the person who thus invited him was at the time of the accident a foreman or managing workman of the defendants, and that he fell into another or different hole than the one described in Page’s affidavit, in either such case it would be necessary and' important that the defendants should have their witnesses present at the trial to meet such an emergency. If . the plaintiff intends, notwithstanding his stipulation, to bring his cause to trial, the defendants would not deem it safe to rely upon the stipulation as their only defense. If, after making such broad and sweeping admissions, which apparently negative the existence of any claim upon his part against the defendants, the plaintiff still insists upon going to trial, he manifestly must rely upon some facts or theory not apparent to the defendants, and which we are not ourselves able to discern from the record. We think undue importance was given by the special term justice to the stipulation. There is no pretense that any witnesses will be needed for •the plaintiff, residing in Ontario county, except himself. The alleged cause of action arose in Albany county. The plaintiff had resided in that county to within about three months of the time of commencing his action. If the trial of the action is to be had, the convenience of witnesses will be promoted by its being tried in the county of Albany. The order appealed from should be reversed, with $10 costs and disbursements of the appeal, and the motion to change the place of trial from Ontario to Albany county should be granted, with $10 costs of the motion, to abide the event of the action. All concur.  