Appellate Division of the Supreme Court of New York, Second DepartmentMay 28, 1915
168 App. Div. 260 (N.Y. App. Div. 1915)
168 App. Div. 260153 N.Y.S. 778

May 28, 1915.

Laurence Arnold Tanzer, for the appellants.

William F. Purdy, for the respondents.

The cause of action is false representations incident to the sale of realty, with reference to certain leases thereon and to the necessary expenses of the maintenance thereof. The realty is situate in the county of New York. It appears that the representations were made, the negotiations were conducted and transactions were carried out in that county. It appears that all of the parties are engaged in business therein, that the office of the plaintiffs as executors is therein, and that all of the participants in the negotiations who are the supposed or proposed witnesses, of whom many are specified, are engaged in business in the said county.

The sole justification for the venue of the county of Kings is the residence of one of the plaintiffs. Even as to him, it is not alleged that he is to be a witness, and the allegation of the moving affidavit that he had nothing to do with the transactions involved in this action is not denied. We think that the motion should have been granted, under the authority of Jacobs v. Davis ( 65 App. Div. 144), Archer v. McIlravy (86 id. 512, 514), Lutfy v. Sullivan (119 id. 506), Pinkus v. United Cloak Suit Co. (124 id. 535, 536) and Jacina v. Lemmi (155 id. 397). Some of the witnesses named by the defendants are experts. The respondents contend that their convenience is not to be considered. This is not the rule when experts are to testify from personal knowledge (as we may infer in this case), and not from an assumed state of facts. ( Groff v. Rome Metallic Bedstead Co., 98 App. Div. 152, 154.)

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

JENKS, P.J., THOMAS, CARR, RICH and PUTNAM, JJ., concurred.

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