Hutton v. National Gypsum Co. , 264 A.D. 975 ( 1942 )

This is an appeal from an order denying defendant, appellant’s motion to change the place of trial of the above-entitled action from Ulster county to Erie county on the ground of convenience of witnesses. The action is brought by plaintiff to recover damages alleged to have been sustained to certain canal barges while under charter to the defendant. The complaint alleges that when the vessels were delivered to defendant they were in good seaworthy condition, but upon their return at the close of the season they were damaged and that such damage was not the result of ordinary wear and tear. Defendant admits the charter agreement, but denies the vessels were damaged while in its service. The motion for the order to change the place of trial for the convenience of witnesses is addressed to the sound discretion of the court. We cannot find that there was an abuse of discretion. Prom the papers submitted on this application for change of place of trial, the Special Term was justified in making an order denying the motion, and the order of the Special Term should be affirmed. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Bliss, Heffernan, Sehenck and Foster, JJ.