
    Philip Van Alstine, Respondent, v. Gertrude Burt, Appellant.
    Second Department,
    May 24, 1912.
    Venue — change of place of trial — convenience of witnesses — transitory action.
    Where an attorney, residing in Rockland county, brings an action in said county for professional services against a defendant residing in Nassau county, and it appears that the action arose in Nassau county, that the defendant’s witnesses reside in said county except one who resides in Kings county, while the plaintiff has no witnesses residing in Rockland county except such as he may call as experts upon the value of his services, and it also appears that it will be necessary upon the trial to use the records in the office of the county clerk and surrogate of Nassau county, the defendant’s motion to change the place of trial to Nassau county for the convenience of witnesses should be granted. ■
    Other things being equal a transitory action will be tried in the county where the cause of action arose.
    ELirsci-iberg, J., dissented.
    Appeal by' the defendant, Gertrude Burt, from, an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Rockland on the 1st day of April, 1912, denying the defendant’s motion to change the place of trial from the county of Rockland to the county of Nassau.
    
      Franklin Taylor, for the appellant.
    
      George A. Wyre, for the respondent.
   Burr, J.:

Plaintiff is a resident of Rockland county and defendant a resident of Nassau county. Prior to September 26,1910, defendant had been sued by one Driscoll for alienation of her husband’s affections, which suit was then pending in the Supreme Court, the place of trial being in Nassau county. At that time she was also engaged by proper proceedings in the Surrogate’s Court in Nassau county in settling her accounts as administratrix of her husband’s estate. Defendant retained Oscar B. Danger and plaintiff jointly to represent her in said action and proceedings. This action is brought to recover for professional services claimed to have been rendered by plaintiff to defendant between September 26, 1910, and the 21st day of April, 1911. Defendant moved to change the place of trial from Dockland county to Nassau county for the convenience of witnesses. From an order denying such motion this appeal is taken.

Defendant sets up as a defense the joint retainer of plaintiff with Danger and a defect of parties plaintiff, an agreement with Danger as to the price to be paid for the services, an agreement between Danger and plaintiff for a division of the fee; that the services prior to March 4, 1911, were rendered by plaintiff and Danger jointly, payment in full, and that the services were not of the value claimed by plaintiff. To sustain these defenses it appears that defendant must call two witnesses as to the subject-matter of the contract, the price agreed upon, and payment. In addition she must call three witnesses who will testify as to the character of the services rendered, and these three witnesses, together with a fourth witness named, will testify as to the value of the services rendered. All of ' these witnesses except the latter reside in Nassau county, while the latter witness resides in Kings county. In addition, it will be necessary upon the trial of the action to make use of the records in the office of the county clerk and surrogate of Nassau county. Plaintiff concedes that he has no witnesses residing in Dockland county except such witnesses as he may call as experts upon the value of services. Under the circumstances here disclosed the application to change the place of trial should have been granted.

While it is true that the place of trial will not be changed simply for the convenience of expert witnesses (Adriance, Platt & Co. v. Coon, 15 App. Div. 92; Bushnell v. Durant, 83 Hun, 32), all of the witnesses for defendant with one exception are not called solely as experts, but to testify to essential and material facts.. Beyond that, if the action is tried in Dockland county, the difficulty of referring to' the records in Nassau "county will be greatly increased. The action-is transitory in character, and, other things being equal,' a transitory action will be tried in the county where the cause of action arose, which in this case is Nassau county. (Harrison v. Holahan, 122 App. Div. 740; Spanedda v. Murphy, 144 id. 58; Neiman v. Gardner, 145 id. 197.) In this case the other things ” are not equal, but greatly preponderate in favor of the claim thht the trial should be had in Nassau county for the reasons above stated.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Jenks, P. J., Thomas and Carr, JJ., concurred; Herschberg, J., dissented.

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