
    Fred Schulz, Respondent, v. Hudson Valley Railway Company and the Village of Saratoga Springs, Appellants.
    First Department,
    December 1, 1911.
    Practice — change of place of trial — convenience of witnesses — negligence action — municipal corporation.
    Where on a motion for a change of venue in a negligence action made on the ground that the convenience of witnesses and the ends of justice will be promoted thereby, there are conflicting claims as to the number and materiality of witnesses, the place where the cause of action arose and where the conditions and transactions to be inquired into on-the trial existed form a most important, if -not a controlling, consideration. It is not consistent with the public interests to require the officers and employees of a municipal corporation to abandon them duties and go to a distant county in order to defend a-negligence action brought against them corporation.
    Appeal by the defendants, the Hudson Valley Railway Company and another, 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 8th day of September, 1911, denying a motion duly made by the defendant Hudson Valley Railway Company, in which the defendant the Village of Saratoga Springs was permitted to intervene without affidavits to change the place of trial from the county of Hew York to the county of Saratoga.
    
      Frank Gick, for the appellant village of Saratoga Springs.
    
      James McPhillips, for the appellant railway company.
    
      Eli J. Blair, for the respondent.
   IiAUGHLIN, J.;

The action is brought to recover damages for personal injuries sustained by plaintiff by being thrown, from a buggy in which he was riding at the intersection of Bast avenue with the Speedway and Fifth avenue, being a public highway in the village of Saratoga Springs, on or about the 20th day of August, 1910, alleged to have been caused by negligence on the part of the railway company in failing to perform its duty to restore and maintain the surface of the street between its tracks in a safe condition for public travel, and to pave the same in accordance with the obligations imposed by its franchise, and on the part of the village to properly inspect and keep the streets in repair.

The moving papers show that the plaintiff has a residence in the village of Saratoga Springs, and is customarily there a large part of the year; but plaintiff claims to be a resident of the county of New York, and the motion was made on the ground of the convenience of witnesses, and that the ends of justice would be promoted by the change of the place of trial, and not on the ground that the county of Saratoga is the proper county. The answers of the respective defendants put in issue the material allegations of the complaint with respect to the plaintiff’s freedom from contributory negligence, and the charges of negligence on the part of the defendants.

We are of opinion that it fairly appears that the convenience of witnesses will be promoted by the change of the place of trial as duly demanded, and that the ends of justice require that course. Where conflicting claims with respect to the number and materiality of the witnesses are presented by the affidavits, as in the case at bar, the place where the cause of action arose, and where the conditions and transactions to be inquired into on the trial existed and took place, form a most important, if not a controlling consideration. Here the material facts in dispute relate to the condition of the street at the time of the accident and prior thereto, and to the manner in which the plaintiff was driving, and to the circumstances under which he met with the accident. It is manifest that the facts and circumstances attending such an accident, and upon which the liability or freedom from liability on the part of the defendants depend, can be better inquired into at or near the vicinity of the accident than at a place remote therefrom. Moreover, the action being against a municipal corporation, it is evident that it would not be consistent with the public interests to require its officers and employees to abandon their duties and attend a trial in New York county.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to each appellant, and motion granted, with ten dollars costs to appellant railway-company.

Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to each appellant, and motion granted, with ten dollars costs to appellant railway company.  