
    Laura A. Weiant, Appellant, v. The Rockland Lake Trap Rock Company and Others, Respondents.
    
      Change of venue—the fact that the plaintiff's son is sheriff of the county does not justify it.
    
    The fact that the son of the plaintiff, in an action brought in the county of Rock-land to recover damages for a trespass on real estate situated in that county, has been elected sheriff of the county, is not sufficient to justify a change of venue under the provisions of subdivision 2 of section 987 of the Code of Civil Procedure upon the ground that there is “ reason to believe that an impartial trial cannot be had in the proper county.”
    Goodrich, P, J,, dissented.
    Appeal, by the plaintiff, Laura A. Weiant, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 3d day of January, 1902, changing the place of trial of the action from the county of Rockland to the.county of Westchester, and staying the trial thereof until the final determination of an appeal to the Court of Appeals in another action between the same parties.
    
      William McCauley, for the appellant.
    
      Wilson Brown, Jr., and Irving Brown, for the respondents.
   Hirschberg, J.:

This action was commenced in January, 1900, in the county of Rockland, to recover damages for trespass on real estate situated in that county. In a prior action between the same parties, brought, to procure an injunction and for other equitable relief, a judgment was recovered by the plaintiff in July, 1899, establishing a division line upon the location of which the claim for damages is dependent,, and in that action a motion made by the defendants for a new trial upon newlydiscovered evidence was denied at the Special Term in November, 1900. On appeal to this court the judgment and the order denying such motion for a new trial were duly affirmed. (See Weiant v. Rockland Lake Trap Rock Company, 61 App. Div. 383.) The defendants have appealed to the Court of Appeals, from the judgments of affirmance, and the order now appealed from has been granted in the second action, and changes the place of trial from the county of Rockland to the county of Westchester, besides, enjoining the trial until the final determination of the appeal to the Court of Appeals.

The change of place of trial was made under the provisions of subdivision 2 of section 987 of the Code of Civil Procedure upon the ground that there was reason to believe that an impartial trial cannot be had in the proper county.” The sole basis for this belief appears to be the fact that since the commencement of the action the plaintiff’s son has been elected sheriff of Rockland county. This in itself is not enough. The sheriff if sued for an official act performed in the county would be suable there under the provisions of the Code, and it is impossible to see how his relationship to a litigant could alone justify a change of venue on the ground assigned. Such relationship furnishes no reason to justify a belief that an impartial trial cannot be had in Rockland county, and what was said on that subject in deciding the case of Lent v. Ryder (47 App. Div. 415) is equally pertinent and applicable here.

It is true, however, that two of the defendants make affidavit to the éffect that the plaintiff’s son and his friends during his candidacy for the office of sheriff traveled in every part of the county and made statements prejudicial to the defendants and their interests in this litigation, and in general terms made or sought to make political capital out of the litigation. N.o one makes affidavit of the language used, nor does any one swear at first hand to anything actually heard by him. It is manifest that such an affidavit is mere hearsay, but everything asserted even as hearsay was specifically denied, excepting possibly the fact that the sheriff individually is prejudiced in favor of his mother, which fact may well be assumed to be true. But the case is barren of any facts which tend in any degree to establish the conclusion that a fair and impartial trial of the case cannot be had in Rockland county. It follows that so much of the order as changed the place of trial was without foundation.

The stay of proceedings is equally unjustified. The affirmation of the judgment and order in this court in the suit' first instituted was unanimous, and the order of affirmance recites that the court “ unanimously decided that the findings of fact are supported by the evidence.” Applications for reargument and for leave to appeal to the Court of Appeals were denied by this court. (See Weiant v. Rockland LakeTrap Rock Company, 64 App. Div. 619, 620.) Subsequently an order denying at Special Term the defendants’ motion for a bill of particulars of the damages claimed herein was 'affirmed on appeal. (See Weiant v. Rockland Lake Trap Rock Compamy, 64 App. Div. 621.) No leave to appeal has been granted by the Court of Appeals or any judge of that court, and no question of law has been certified by this court. Assuming, but without deciding, that the defendants may appeal to the Court of Appeals as a matter of right under the provisions of sections 190 and 191 of the Code of Civil Procedure for the purpose of reviewing errors in ruling upon the trial, there was nothing before the Special Term to indicate that there were any such errors overlooked or unappreciated in this court .which would render a reversal likely.

The order appealed from was accordingly without legal justification and should be reversed.

All concurred, except Goodrich, P. J., who dissented from that portion of the order which reverses the order, changing the place of trial, on the ground that the sheriff’s duties are so closely connected with the drawing of jurors that an impartial trial may be periled.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs to the plaintiff to abide the event.  