
    HENRY N. KELLOGG, Appellant, v. JOHN L. SMITH, Impleaded with JACOB ALLEN, Respondent.
    
      Appeal — change of nenue.
    
    An appeal from an order changing the venue for the convenience of witnesses (if such order be appealable), can only be heard in the department embracing the county to which the action has been transferred.
    Appeal from an order of the Special Term, changing the place of trial of this action from Oneida to Otsego county.
    
      E. J. Richardson, for the appellant.
    
      J. J. Duddleston, for the respondent.
   E. Darwin Smith, J.:

This is an appeal from an order made at the Otsego Special Term, changing the place of trial from Oneida to Otsego county for the convenience of witnesses. The order was made at a Special Term in Otsego, held March 30, 1815, and entered in Oneida county clerk’s office, April fifth, and the papers transmitted to the clerk of Otsego, and filed and entered in the Otsego county-clerk’s office, April sixth.

The notice of appeal is dated the eighth May, and is addressed to and, I presume, was served upon both the clerks of Oneida and Otsego counties. If the order in this case were appealable (which I am not prepared to admit; on the contrary, I think otherwise, and that it involves no substantial right), we think it can only be heard in the third department. After the papers were transmitted from the Oneida to the Otsego county clerk’s office, the place of the trial of the cause was changed to that county, and the appeal could only be made to, and heard in the third department. The notice of appeal in such case must be served upon the clerk having the custody of the papers in the cause. These papers, when the appeal was brought, were in the lawful custody of the clerk of Otsego county. If an appeal had been immediately brought from the order, with a stay of proceedings before the papers had been transmitted by the clerk of Oneida to the clerk of Otsego, then the appeal could properly have been brought to a hearing in this department.

But in the present state of the cause, we should decline to hear the appeal, and leave the party at liberty to bring it to a hearing in the third department, if he shall be so advised; otherwise we should dismiss the appeal.

Present — Mullin, P. J., Smith and Noxon, JJ.

Ordered accordingly.  