
    Arthur C. Brady, Plaintiff, v. Isidor L. Cohen, Defendant
    (Supreme Court, Westchester Special Term,
    January, 1908.)
    Place of trial — Change of place of trial — Convenience of witnesses — Rule in ninth judicial district.
    Where, upon a motion to change the place of trial for the convenience of witnesses, the opposing affidavits show not only that the plaintiff is an old resident of the county where the venue was laid hut that four out of seven of his intended witnesses reside in said county, one in Westchester county, one in Orange county and only one in New York county where the cause of action arose, the motion will be denied in accordance with the settled practice in the ninth judicial district.
    Brady v. Hogan, 117 App. Div. 898, distinguished.
    Motion to change the place of trial.
    Krakower & Peters, for defendant and motion.
    M. B. Patterson, for plaintiff opposed.
   Mills, J.

This is a motion made by defendant to change the place of trial from Rockland county, where the venue is laid, to Mew York county.

The motion is made upon two grounds, viz.: (1) That upon the authority of the case of Brady v. Hogan, 117 App. Div. 898, the ends of justice will be better served by having the trial in New York county than in Rockland county, because the cause of action arose in New York county (see Code Civ. Pro., § 987, subd. 3), and (2) that the convenience of witnesses will be promoted by the change asked.

As to the latter ground, I do not think that, upon the facts, it is sufficient, within the established practice of this judicial district, to require such change to be made. The opposing affidavits show not only 'that the plaintiff is an old resident of Rockland county, but also that of his seven-intended witnesses, four are residents of that county, another a resident of Yonkers in Westchester county, another of Orange county, N. J., and only one of New York county. It has long been considered to be the settled practice in the Second Department, at least in the counties comprising the present Minth Judicial District, for such a motion to change the place of trial from one of these counties to New York county to be denied, except, such change appears ío be a matter of clear right. The counsel for the defendant upon this motion claims that the recent decision of our Appellate Division in the case of Brady v. Hogan, supra, should be here accepted as having changed such practice and as requiring this motion to be granted. It is true that the plaintiff in this case and the plaintiff in that case is the same person; and that in each case the plaintiff sues as assignee of a cause of action which arose in New York county out of dealings between parties doing business there.

In that case, however, 'it appeared that the plaintiff was in the employment of his assignors. The inference, therefore, was strong in that case that the assignment was merely for the purpose of having the action brought in Rockland county; and that -£he assignee, in bringing it there, was really acting in the intferests of his employers. In this case the plaintiff does not .appear now to be or ever to have been in the employment of his assignor; and it further appears in this case, as it did not in that case, that the plaintiff took the assignment in goo.d faith and for a valuable consideration and absolutely without any condition. Moreover, in that case it did not appear that any of the plaintiff’s proposed witnesses, except himself, resided in Rockland county; whereas in this case it appears that four of his proposed witnesses, beside himself, reside there.

I think, therefore, that this case can be distinguished from Brady v. Hogan, supra; and that the motion to change the place of trial should be denied in accordance with the old practice in this district. In general the ends of justice will be secured by a speedy trial. It is well known that in Rock-land county a, trial can be obtained much sooner than in Hew York county, and strong regard may properly be given to this fact.

The motion to change the place of .trial, as above stated, is denied. •

Motion denied.  