and 120 New York State Reporter WATKINS et al., Respondents, v. BROWN, Appellant. (Supreme Court, Appellate Division, Second Department. March 11, 1904.) Action by Edward Watkins and others against William Brown. No opinion. Judgment of the Municipal Court affirmed by consent, without costs. other. No opinion. Motion for reargument | to be primarily considered on either side are granted, and case set down for the first day for those who are in themselves necessary witnessthe hearing of municipal appeals. es in the case, and not those for whom, presumably, adequate substitutes are at hand. See Jordan v. Garrison, 6 How. Prac. 6. I think that none of the five is within the description for the reason that all are described as but wit nesses to the character and repute of the plaintiff. It cannot be presumed but that many oth ers of equal standing, who reside in the city where the plaintiff transacts his business, are equally available to testify upon this subject. None of the five, save one, is even a witness in the vicinage of the plaintiff. The hypercritical might suggest that not alone the high standing, but the residential qualifications, of the witnesses, prompted their nomination in the opposing papers. I think, then, that the learned Special Term had a right to conclude, and that we have a right to conclude, that there are praetically no witnesses named by the plaintif whose convenience need be compared by the court with that of the witnesses named by the defendant. This is an action against the secre tary of the New York Stock Exchange for Ebel The plaintiff, a stockbroker, courted an investiJENKS, J. (dissenting). I dissent. This is gation at the hands of the governing committee an appeal from an order changing venue from of that body, and the defendant, as an official, Nassau county to New York county on a motion after a preliminary investigation by the law based on the convenience of witnesses and the committee and the governing committee, and at promotion of justice. In Sparks V. United their instance, preferred the charges upou Traction Co., 66 App. Div. 205, 206, 73 N. Y. which the hearing was based, and which resultSupp. 109, the court, per Adams, P. J., said: ed in the suspension of the plaintiff. All of the "The determination of a motion to change the proceedings, including the preliminary invest.place of trial on the ground of the convenience gation, the preference of the charges, the bearof witnesses often resolves itself into the exer-ing, and all other germane matters, were held cise of the discretionary power of the Special Term, and, when thus exercised, it should not be disturbed by an appellate tribunal, unless it is made clearly to appear that there has been an abuse of that power. Fitzgerald v. Payn, 78 Hun, 38 [28 N. Y. Supp. 1033]; Payne v. E. Electric Co., 88 Hun, 250 [34 N. Y. Supp. 657]." At all events, our discretion on review should not be exercised as if the motion now came up for a second hearing as of first instance, regardless of the exercise of the discretion by the Special Term. I see no reason for the exercise of our discretion counter to that of the Special Term. I am well aware of the rules laid down in Daley v. Hellman (Sup.) 16 N. Y. Supp. 689, approved in Navratil v. Bohm, 26 App. Div. 460, 50 N. Y. Supp. 225, McCready v. Haight, 22 App. Div. 632, 48 N. Y. Supp. 39, and Tuthill v. Long Island R. R. Co., 75 Hun, 556, 26 N. Y. Supp. 1029. Let us compare the convenience of witnesses. First. There is the plaintiff, who resides in the county of Nassau, but who does business as a stockbroker in the city of New York. In Hedges v. Bemis, 38 App. Div. 349, 56 N. Y. Supp. 566, the court, per Van Brunt, P. J., says: "But where the cause of action has arisen in another county, and the convenience of the witnesses will be promoted by a change of venue to that county, we are not aware of any rule which will permit the inconvenience to the plaintiff to prevent its removal to the proper county." Second. There are the five witnesses named by the plaintiff. Of the five, three reside in Oyster Bay, one at Port Washington, and one at Hempstead. It seems to me that the witnesses WEIDENFELD, Appellant, v. McCLURE, Respondent. (Supreme Court, Appellate Division, Second Department. December 30, 1903.) Action by Camille Weidenfeld against William McClure. Herbert R. Limburger (Edward Lauterbach and Henry L. Scheuerman, on the brief), for appellant. Lewis Cass Ledyard, for respondent. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with costs, on the authority of Quinn v. Brooklyn Heights R. Co. (decided Nov. 20, 1903) 84 N. Y. Supp. 738. in the city of New York, where the plaintiff has his place of business, and where the stock exchange is located. It is fairly well settled, in transitory actions, when the even relative conrenience of witnesses is open to question, that the county of the occurrence should be preferred as that of the trial. Payne v. Eureka Electric Co., 88 Hun, 250, 34 N. Y. Supp. 657; Osterhout v. Rabe, 39 App. Div. 413, 57 N. Y. Supp. 336; Kubiac v. Clement, 35 App. Div. 186, 54 N. Y. Supp. 773. See, too, Ballstra Storage Co. v. Defeo, 67 App. Div. 341, 73 N. Y. Supp. 772; Jacobs v. Davis, 65 App. Div. 144, 72 N. Y. Supp. 558; Thompson v. Mas Kinnon, 57 App. Div. 329, 67 N. Y. Supp. 1105, And in Browne v. Town of Mount Hope, 73 App. Div. 599, 601, 77 N. Y. Supp. 1, 2, this court, per Willard Bartlett, J., said: "In Kubiac v. Clement, 35 App. Div. 186 [54 N. Y. Supp. 773], it was held that, where a case is evenly balanced as to witnesses, the locality in which the cause of action arose is an important element in the determination of an application to change the venue; and it is still more important in a case like this, where the wit nesses of the moving party outnumber those of the other side in the proportion of more than two to one." The learned counsel, in answer to this contention, states in his affidavit: "While the jury would have the right to infer malice from the language of the libelous article which charges the plaintiff with the crime of extortion, I did state, in the affidavit referred to in the defendant's moving papers, that it was my intention to show by the statements of the defendant before the governing committee cir Frederic Hall White for an allowance to prosecute his studies. No opinion. Motion to dismiss appeal denied, with $10 costs. WHITE, Respondent, Y. NEW YORK DOCK CO.. Appellant. (Supreme Court, Appellate Division, Second Department. March 4, 1904.) Action by Alexander White against the New York Dock Company. No opinion. Judgment and order unanimously affirmed, with costs. Feb cumstances from which the jury could find the | existence of express malice. Inasmuch as there is a stenographic record of the statements of the plaintiff, this fact can be established by the stenographer of the committee, or by any one member of the committee, all of whom are friendly to the defendant, and the testimony of one of whom, Mr. Heaton, I attempted to take before a referee, under the order of the court, as herein before stated. The testimony of all of these witnesses must, under the circumstances, necessarily be cumulative." Without prejudg ing the case, I may say that there is grave question whether the plaintiff can prevail Appellate Division, First Department. In re WHITLOCK AVE. (Supreme Court, against this defendant without evidence of express malice. Remington v. Congdon, 2 Pick.ruary 11, 1904.) In the matter of Whitlock 310, 13 Am. Dec. 431; O'Donaghue v. McGov- Avenue. No opinion. Motion granted as to ern, 23 Wend. 26; Streety v. Wood, 15 Barb. questions 1 and 2. 105, 110. I think, then, that it may be fairly said that the defendant is entitled at least to have at hand the testimony both of the members of the law committee who investigated preliminarily, and also of those who tried the charges, in order to disprove, if possible, that which the plaintiff may be bound to prove as part of his case. It may be that the testimony of many of these members may be held cumulative or unnecessary upon the trial; but we cannot forecast the scope or trend of the trial to the extent of excluding or limiting the numher of such witnesses. Snyder v. Mack, 35 App. Div. 97, 54 N. Y. Supp. 534, is also an authority that sustains the learned Special Term. I think that the order should be affirmed. GOODRICH, P. J., concurs. WELDON v. BROWN et al. (Supreme Court. Appellate Division, First Department. February 19, 1904.) Action by Walter S. Wellon against James N. Brown and another. No opinion. Motion denied. WELLS, Respondent, V. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 29, 1904.) Action by Emma J. Wells gainst the New York Central & Hudson River Railroad Company. PER CURIAM. Judgment and order re-ersed, and new trial ordered, with costs to the appellant to abide event, unless the plaintiff tipulates to reduce the verdict to the sum of 3,500 as of the date of rendition thereof, in which event the judgment, as so modified, and he order, are affirmed, without costs of this ppeal to either party. In re WHITE. (Supreme Court, Appellate Division, Second Department. January 29, 904.) In the matter of the application of Joah J. White as guardian of the person of rederic Hall White, an infant, for the payent of funds, etc. No opinion. Motion to dismiss appeal denied. In re WHITE. (Supreme Court, Appellate Division, Second Department. January 29, 904.) In the matter of the application of Appellants. (Supreme Court, Appellate Divi- PER CURIAM. Judgment affirmed, with costs. STOVER, J., dissenting. WILHELM, Respondent, v. WILHELM_et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. January 29, 1904.) Action by Caro Wilhelm against Emil Wilhelm and another. PER CURIAM. Judgment and order affirmed, with costs. STOVER, J., dissents. McLENNAN, P. J., not sitting. WILSON, Appellant, ▼. BROOKLYN HOMEOPATHIC HOSPITAL, Respondent. (Supreme Court, Appellate Division, Second Department. January 22, 1904.) Action by Alexander Wilson against the Brooklyn Homeopathic Hospital. No opinion. Motion, in so far as it asks to dismiss the appeal from the order refusing resettlement of the case on appeal, granted, with $10 costs. Motion to dismiss the appeal from the judgment denied, on condition that the appeal be perfected, and the case be brought on for argument at the next term. WITMARK et al., Respondents, v. TAMS, et al., Appellants. (Supreme Court, Appellate Division, First Department. February 19, 1904.) Action by Marcus Witmark and others against Arthur W. Tams and Benno Loewy. B. Loewy, for appellants. A. S. Gilbert, for respondents. PER CURIAM. Order affirmed, with $10 costs and disbursements. VAN BRUNT, P. J., and O'BRIEN, J., dissent. WOOD, Respondent, v. WHELEN, Appellant. (Supreme Court, Appellate Division, Second Department. March 4, 1904.) Action by John J. Wood against Susie V. Whelen. No opinion. Judgment affirmed, with costs. and 120 New York State Reporter WOODRUFF, Appellant, v. ALGER, Re- J. W. Searing, for respondent. No opinioL. spondent. (Supreme Court, Appellate Division, Order affirmed, with $10 costs and disburse First Department. January 22, 1904.) Action ments. by Amos E. Woodruff against William G. Alger. A. E. Woodruff, for appellant. J. F. Kernochan, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. WOOLWORTH, Appellant, V. LEADER CO., Respondent. (Supreme Court, Appellate Division, First Department. March 11, 1904.) Action by Frank W. Woolworth against the Leader Company. J. B. Handy, for appellant. ZIMMERMAN, Respondent, v. T. H. SIMONSON & SON CO., Appellant. (Supreme Court, Appellate Division, First Department. February 5, 1904.) Action by Jacob A. Zimmerman against the T. H. Simonson & Son Company. S. H. Stuart, for appellant. F. M. Avery, for respondent. No opinion. Judgment and order affirmed, with costs. END OF CASES IN VOL. 86. INDEX. ABATEMENT AND REVIVAL. an allegation of an account stated.-Coons v. Election of remedy, see "Election of Remedies." Revival of judgment, see "Judgment," § 6. § 1. Another action pending. Pendency of an action by an agent against ABUTTING OWNERS. does not apply to a case where the existence of In action on account stated, where the ex- ACKNOWLEDGMENT. V. Operation and effect of admissions as evidence, Assessments for expenses of public improve- try, as required by Real Property Law, Laws (1153) Actions by or against particular classes of See "Carriers," §§ 2-4; "Corporations," § 3; and 120 New York State Reporter and Surety," § 1; "Receivers," § 2; "Schools | Foreclosure of mortgage, see "Mortgages," 2. and School Districts," § 1; "Street Railroads," § 1; "Towns," § 1. Assignees, see "Assignments," § 2. Ferryboat companies, see "Ferries," § 1. Heirs, see "Descent and Distribution," § 1. Savings bank, see "Banks and Banking," § 3. Particular causes or grounds of action. Bonds for payment of alimony, see "Divorce," § 2. Bonds of liquor dealers, see "Intoxicating Liq uors," § 1. Breach of covenant, see "Covenants," § 1. Compensation of broker, see "Brokers," § 3. Injury to bridge, see "Bridges," § 1. Taking of or injury to property in exercise of Wages, see "Master and Servant," § 1. Waste impairing security of mortgage, see "Mortgages," § 1. Wrongful conversion of property held under conditional contract of sale, see "Sales," § 6. Particular forms of action. Reformation of written instrument, see "Ref- Removal of cloud on title, see "Quieting Title." Setting aside assessment for public improve See see Particular proceedings in actions. Revival of judgment, see "Judgment,” § 6. "Tender." Proceedings in exercise of special jurisdictions. Criminal prosecutions, see "Criminal Law." Review of proceedings. See "Appeal"; "Justices of the Peace," § 1: "New Trial." 1. Nature and form. Complaint alleging personal injuries by reason of breach of covenant to repair held to state a breach of contract and not cause of action in tort.-Spero v. Levy (Sup.) 869. 2. Commencement, prosecution, and termination. Assignee of the owner of a building held entitled to sue for damages for breach of the costruction contract in a county where a more expeditious trial could be obtained in order to forestall the trial of a suit by the contractor in another county for the balance of the contract price. Ogden v. Pioneer Iron Works (Sup.) 955. An order staying an action to recover damages for breach of a building contract until determination of a prior action by the contractor for a balance of the contract price held error. -Ogden v. Pioneer Iron Works (Sup.) 955. An order staying proceedings in an action pending the determination of another suit should not be granted before issue joined.—Og See "Ejectment"; "Repleyin"; "Trespass," § den v. Pioneer Iron Works (Sup.) 955. 2; "Trover and Conversion." Particular forms of special relief. See "Divorce": "Injunction"; "Partition," § 1; "Quieting Title"; "Specific Performance.' Alimony, see "Divorce," § 2. Where two actions are independent of each other and a decision in one will not determin the other, a stay of the second will not be granted pending an appeal in the first.-Jenkins v. Baker (Sup.) 958. Stay of proceedings in another action between Determination of adverse claims to real prop- plaintiff and defendant in another county can erty, see "Quieting Title." Establishment of will, see "Wills," § 3. not be obtained in an action at law for damages.-Purdy v. Baker (Sup.) 1063. |