
    Francisco Mole, Plaintiff v. The New York, Ontario & Western Railroad Company, Defendant.
    (Supreme Court, Orange Special Term,
    February, 1907.)
    Place of trial: Residence or domicile of parties — Corporations — Railroad company; Change of place of trial; Affidavits on motion — Probability that witnesses will testify as stated; Convenience of witnesses — What "witnesses considered — Employees and experts.
    In an action to recover damages for personal injuries against a railroad company, the place of trial is properly laid in a county-through which its road is operated, in which it owns property an-! has a place for the regular transaction of business.
    Upon a motion to change the place of trial for the convenience of witnesses, affidavits which state that the moving party expects to prove certain facts by the witnesses named, without stating or disclosing grounds showing that such facts can be proved by them, are insufficient. '
    And where it appears that the plaintiff is a poor man and would be unable to transport his witnesses to the county where the accident happened and to which the place of trial is sought to be changed, and defendant’s witnesses are all its employees except the expert witnesses, and to change the place of trial would .practically defeat the plaintiff’s cause of action, such change will not be ordered.
    Motion to" change the place of trial.
    Martin T. Mantón, for plaintiff.
    Howard D. Newton, for defendant.
   Morschauser, J.

This motion is made by the defendant to change the place of trial upon the ground of convenience of witnesses and that the county designated, viz., Orange county, is not the proper county, and that the same should be changed to Oneida comity, the comity wherein plaintiff was injured.

Plaintiff sustained the injuries at South Loop, Oneida county, this State, while he was employed by defendant upon a work train on defendant’s railroad. The negligence and injuries are denied by the defendant.

In the affidavit stating the names of the witnesses who will be convenienced by a change of the place of trial, it is simply stated that the moving defendant expects to prove certain facts by the witnesses named, but it is nowhere stated that those facts can be proven by those witnesses, nor does the affidavit disclose grounds showing that the facts can probably be established by the persons designated and it is insufficient. Lyman v. Gramercy Club, 28 App. Div. 34; Hayes v. Garson, 25 id. 115; White v. Hall, 8 id. 618.

It further appears that the plaintiff is a poor man and the change of the place of trial to Oneida county would practically defeat his cause of action, as nearly all the witnesses for the defendant are its employees except the expert witnesses. This is a sufficiently controlling consideration to deny the change of place of trial. The plaintiff, being in poor financial circumstances, would be unable to transport his witnesses to Oneida county; and this is a case where the location of the happening of the accident should not control. Tuthill v. Long Island Railroad Co., 75 Hun, 556.

The convenience of expert witnesses is not consulted in deciding the question as to changing the place of trial. Adriance, Platt & Co. v. Coon, 15 App. Div. 92; Bushnell v. Durant, 83 Hun, 32.

The defendant operates its railroad through Orange county in which it owns property and has a place for the regular transaction of business and the action was properly brought in that county. Poland v. United Traction Co., 88 App. Div. 281.

The motion to change the place of trial is denied, with ten dollars costs to the plaintiff to abide event.

Motion denied, with ten dollars costs to plaintiff to abide event.  