
    Frances B. Stimson, Pl’ff, v. James A. Stimson, Def't.
    
      (Supreme Court, Special Term, Albany County,
    
    
      Filed January 28, 1890.)
    
    Venue—Motion to betain.
    A motion to retain the venue for the convenience of witnesses cannot overcome the right of the defendant to have it changed to the proper 'county.
    Action for divorce. The venue was laid in Albany county. The defendant moved to change the place of trial to Montgomery county on the ground that that was the proper county, neither party residing in Albany county. The further facts appear in the opinion.
    
      P. D. Niver, for pl’ff; Z. S. Westbrook, for def’t.
   Learned, J.

The plaintiff resides in Saratoga county. The defendant in Montgomery. The venue is laid in Albany. The defendant moves to change to Montgomery. He is undoubtedly entitled to have the motion granted, unless the plaintiff’s counter motion can prevail. After defendant had served his notice of motion, plaintiff served affidavit and notice of motion to be heard at the same time and place to retain the venue at Albany for convenience of witnesses, showing enough necessary witnesses. The defendant shows no witnesses in opposition, but insists that the motion cannot be heard here; that he is entitled to the change of venue, even if plaintiff may be afterwards entitled to move the venue back for convenience of witnesses.

Veeder v. Baker, 83 N. Y., 161, does not quite determine the question. For in that case the affidavits showing convenience of witnesses were read simply in opposition to the motion to change to the proper county. Here there is an independent motion.

Still, the intimation in that case is quite strong, and this consideration may be taken into account. A motion to change venue because the action is not in the proper county may be made before service of answer. Code, § 986. A motion to change for convenience of witnesses must be after issue of fact joined, that it may be seen what the issues are. Then, in the present case, an answer has been served. But the practice must be uniform in all cases whether an answer is served or not.

I think, therefore, it is best to adhere to the regular practice, notwithstanding Mason v. Burns, 6 How. Pr., 481. ' The plaintiff can move to change to Albany for convenience of witnesses. The court of appeals seem to think that “ change ” does not include “retain.”

Motion to change venue granted, with ten dollars costs.

Motion to retain venue in Albany denied, without costs and with leave to renew.  