
    James J. Herbert, Respondent, v. Effie J. Griffith, Appellant.
    
      Place of trial—changed for the convenience of witnesses to a county in which neither pa/i'ty resides — Qode of Oivil Procedure, §§ 983, 988, 98,4, 987.
    Where an action is transitory in its nature the court has power to change the place .of trial to another county to suit the convenience of witnesses, although that county is mot the county in .which either of thé .parties to the action resides.
    
      - Appeal by the defendant, Effie J. Griffith, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 31st day of May, 1895, denying the defendant’s motion to change the place of trial from .the county of He'w York to the county of Albany for the convenience of witnesses.
    
      Arthur H. Smith, for the appellant.
    Ho appearance for respondent.
   Rumsey, J.:

The action was brought for malicious prosecution, the place of trial named in the summons being the county óf Hew York, in which county it appears that the plaintiff resided. After answer the defendant moved to change the place of trial to the county of Albany. Hpon the argument the affidavits of the defendant only were read and no papers were presented on the part of tlie plaintiff. The court denied the motion to change the place of trial to the county of Albany, but with leave to the defendant upon new motion papers to move to change the place of trial to the county of Rensselaer. The precise grounds upon which this order was made do not appear, but it may fairly be inferred from the terms of the order that it was made because neither of the parties resided in the county of Albany.

An examination of the moving papers shows that the ease made by the defendant was sufficient to require the court to change the place of trial, and where that state of affairs appears, an order refusing to change the place of trial will be reversed and the defendant will be given the relief to which his papers entitle him.

The Code of Civil Procedure prescribes in. what counties civil actions must be tried. Actions of a certain kind must be tried in the county where the cause of action $rose or where the subject of the action is situated. (Code Civ. Proc. §§ 982, 983.) Every other action must be tried in the county in which one of the parties resided at the commencement of it. (Code Civ. Proc. § .984.) But all these provisions are subject to the right which by section 987 of the Code of Civil Procedure is given to the court in a proper case to change the place of trial’for the convenience of the witnesses. Where an application is made to the court .to. change the place of trial on that ground, the county to be selected for the trial of the action is the one in which the convenience of the witnesses will be best subserved, although that county may nqt be one of those in which the action must be tried pursuant to' the sections of the Code to which attention has, been called aboyé. The rule - is well settled that, for the convenience of witnesses, the court may order the place of trial, of a transitory action at least, to be changed to a county other than that in which either of the parties resided. Such has always been the law of this State and the procedure of the courts, and it has never been supposed that the provisions, of either the Code of Procedure or the Code of Civil Procedure, which succeeded it, specifying the counties in which actions must be tried, had any effect upon the power of the court to direct that the actions should be tried in another county than one of those specified, when if was made to appear that the convenience of witnesses required such action to be taken. (Flo0d v. Morris, 3 Monthly Law Bull. 100; Gorman v. South Boston Iron Co., 32 Hun, 71.) It is quite apparent from the papers in this case that the convenience of witnesses and the ends of justice will he promoted by changing the place of trial from the county of Hew York to the county of Albany, and that the court erred in denying the motion.

The order appealed from must be reversed, with ten dollars costs and disbursements to be paid by the plaintiff, and the motion to change the place of trial from the county of Hew York to the county of Albany granted, with ten dollars costs to abide the event.

Wait Bbünt, P. J., Baebett, Williams and' Pattebson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements and motion granted, with ten dollars costs to abide event.  