Opinion
November 7, 1955.
In an action for moneys loaned to defendant, for moneys paid to a third party at defendant's request, to recover damages for fraud and for breach of an employment contract, defendant appeals from (1) an order denying his motion to change the venue of the action from Kings County to Jefferson County; (2) an order granting plaintiff's cross motion to retain the venue in Kings County; and (3) an order granting defendant's motion for reargument and adhering to the original decision. Order on reargument modified by striking therefrom everything that follows the first decretal paragraph and by inserting in lieu thereof provisions granting the motion for a change of venue to Jefferson County and denying the cross motion to retain the venue in Kings County. As so modified, order affirmed, with $10 costs and disbursements to appellant. Appeal from original orders dismissed, without costs. The respondent is a corporation organized under the laws of the State of New Jersey. Therefore, notwithstanding the fact that at all times involved in this action it has been duly authorized to do business in the State of New York and has had its only place of business in Kings County, its only domicile and residence has been the State of New Jersey ( Remington Sherman Co. v. Niagara Co. Nat. Bank, 54 App. Div. 358; Williams v. Hollander Son, 249 App. Div. 784). Prior to the commencement of the action appellant resided in Queens County. From there he moved to Jefferson County, where he now lives. Respondent's original affidavits stated that appellant had changed his residence before the summons was served upon him in Jefferson County. In the circumstances, its allegation, in a supplemental affidavit, that the change occurred afterwards may be discounted. Thus it appears that, at the time the action was commenced, appellant was a resident of Jefferson County and respondent was a nonresident. Appellant was, therefore, entitled to have the venue changed to Jefferson County, except that the court, in the exercise of discretion, could retain the venue in Kings County if it were shown that the convenience of material witnesses would be better served by so doing (Civ. Prac. Act, §§ 182, 187). In furtherance of its claim that the convenience of material witnesses requires that the case be tried in Kings County, respondent names seven witnesses it intends to produce, all of whom are officers or employees thereof and four of whom reside outside of said county. In deciding such a question, however, the court will not usually consider the convenience of employees ( Hoffman v. Boston Maine R.R., 259 App. Div. 958), or of nonresidents of the county sought for their convenience ( Sanders v. Prescott, 234 App. Div. 899). Also, a rural county, where calendars are not congested, is to be preferred to an urban county, where conditions are otherwise ( Assets Collecting Co. v. Equitable Trust Co., 168 App. Div. 145; Mills v. Sparrow, 131 App. Div. 241). Accordingly, upon the record herein, this case should have been transferred to Jefferson County. Wenzel, Acting P.J., MacCrate, Schmidt, Murphy and Ughetta, JJ., concur.