Opinion
June Term, 1896.
Morris Cohn, Jr., for the appellants.
Norris Morey, for the respondent.
This action was begun September 18, 1895, by a shareholder in the Hausmann Art Metal Company, a corporation organized March 22, 1893, under the laws of this State, and having its principal place of business in Niagara county, to recover $200,000 damages for the alleged fraudulent mismanagement of the affairs of the corporation by the defendants Samuel J. Moore and Harry G. McConnaughy. It is alleged that the Carter-Crume Company, a corporation organized under the laws of the State of West Virginia, having its principal place of business in Niagara county, of which Moore was a director, wrongfully received, through the frauds of the individual defendants, a large part of the assets of the Hausmann Art Metal Company, and it is joined as a defendant. The defendants Samuel J. Moore and Carter-Crume Company have answered separately. The defendant Harry G. McConnaughy has not been served, nor has he appeared in the action. In the affidavits upon which the motion was made it is averred that eight necessary and material witnesses reside in the county of Niagara, besides the county clerk of that county, whom, or his deputy, it will be necessary to call on the trial — nine in all. The plaintiff, in his affidavit on which he resisted the motion, swears that fourteen necessary and material witnesses reside in the county of Erie, although he does not make the necessity of calling several of them clear.
The defendants, in the affidavits on which they moved, swear that the business of the two corporations was transacted in the county of Niagara, and that all of the transactions out of which this action arose occurred in that county. It is also averred that the plaintiff, during the time of the transactions and until April 4, 1894, was a resident of that county, where he was engaged in conducting the business of the Hausmann Art Metal Company.
The plaintiff in his affidavit, verified February 17, 1896, stated that he had resided in the city of Buffalo for the last two years, or since February 17, 1894. The plaintiff does not deny that the business of the two corporations was conducted in the county of Niagara; that all of the transactions out of which the action arose occurred in that county, or that he during the time was a resident of that county.
It appears that the number of material witnesses required by each side is about the same, and that they will not be greatly inconvenienced by attending the trial of this action in either county. When it is doubtful in which county a transitory action should be tried for the convenience of witnesses, the trial should be had in the county where the cause of action arose. ( Jordan v. Garrison, 6 How. Pr. 6; Goodrich v. Vanderbilt, 7 id. 467.) If the venue of a transitory action is laid in the county of the plaintiff's residence, the court, upon defendant's motion, may change the place of trial for the convenience of witnesses to a county other than the one in which the defendant resides. The rule in this respect, established under the old Code, has not been changed by sections 984 and 987 of the Code of Civil Procedure. ( Flood v. Morris, 3 Law Bull. 100; Gorman v. South Boston Iron Company, 32 Hun, 71; Herbert v. Griffith, 2 App. Div. 566.)
The cause of action in this case arose in the county of Niagara, where the offices of the two corporations, the transactions of which must necessarily be investigated, are situated, and, under the circumstances, the trial should be had in that county.
The order denying the motion is reversed, with ten dollars costs and disbursements, and the motion is granted, with ten dollars costs and disbursements.
All concurred, except WARD, J., dissenting.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.