#### Morris N. Rogers, Respondent, *v.*Richard Blum, Appellant.

Third Department,

July 1, 1915.

Practice — change of venue — collision between automobiles.

Motion for a change of venue in an action to recover damages caused by a head-on collision between automobiles owned respectively by the plaintiff and defendant. Each of the parties brought an action to recover for the same accident, each laying the venue in the county of his residence, and these actions had been consolidated.

Meld, that the place of trial should be changed to the county where the accident occurred and where many of the witnesses resided, including persons who could testify to the amount of damages, owing to the fact that they had repaired the automobile.

*611Appeal by the defendant, Richard Blum, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 9th day of March, 1915, denying a motion for a change of venue.

*Wilber, Norman & Kahn [T. B. & L. M. Merchant*of counsel], for the appellant.

*Wilber & Yetter,*for the respondent.

Per Curiam:

A head-on collision of automobiles owned and driven by the respective parties occurred in August, 1914, at a highway bridge known as Lake Bridge, in the town of Mt. Pleasant in the county of Ulster, N. Y. Each party, claiming that the collision resulted from the negligence of the other in passing to the left of the center of the road, brought an action to recover the damages to his car resulting therefrom. The action brought by the defendant herein was commenced September eleventh, the venue being laid in New York county where he resided. This action was commenced three days later, the venue being laid in Broome county where the plaintiff herein resided. The answer in the New York action denied the liability of the plaintiff herein for the collision. The answer in this action denied the liability of the defendant herein for the collision, and set up as a separate defense and by way of counterclaim the cause of action set forth in the complaint in the New York action. The defendant herein thereupon made a motion to change the place of trial of this action from the county of Broome to the county of Ulster upon the ground that the convenience of witnesses and the ends of justice would be promoted thereby, asking in the alternative that all proceedings on the part of the plaintiff in the Broome county action be stayed pending the trial of the New York action “or for a consolidation of said actions.” The Special Term granted an order consolidating the actions and directing that they be tried as one action, and that Broome county be the venue of the actions so consolidated, and denying the motion'to change the *612place of trial to Ulster county and also denying the defendant’s application for a stay of proceedings of this action pending the determination of the New York action. From such order this appeal has been taken.

It appears that the only eye witnesses of the collision, with the possible exception of a person mentioned in plaintiff’s items of expenses, were the three occupants of the plaintiff’s car, each of whom resides in Broome county, and the seven occupants of the defendant’s car, each of whom resides in New York county. The defendant claims, however, that one Smith, residing in the town of Mt. Pleasant, was on the scene immediately after the collision and saw the positions of the automobiles, and can identify the position of defendant’s car immediately following the collision as that shown on a photograph taken some time later. The defendant names as necessary witnesses in his behalf on the trial of the action, in addition to said Smith, .a photographer residing at Lake Bridge, a surveyor residing at Kingston, N. Y., who respectively took photographs and made a survey of the location of the collision in February, and also six persons who were in the car with him, by whom he expects to prove that at the time of the collision the defendant was on the right-hand side of the road with his car under control, while the plaintiff’s car was to the left of the center of the highway and being driven recklessly and at a rapid rate of speed. ■

Upon the other hand, the plaintiff in his papers presented in opposition to the motion, names as necessary witnesses his wife and daughter, who were in the car with him, by whom he expects to prove that at the time of the collision the plaintiff was driving his car carefully at a moderate rate of speed, and was at the right of the center of the highway, while the defendant was at the left of the center, and was driving his car rapidly and recklessly. The plaintiff also names six additional persons residing in the county of Broome as necessary witnesses in his behalf on the trial of the action, by three of whom he expects to prove that they made certain repairs to his car necessitated by the collision, and the reasonable cost of making the same; and by the other three witnesses that they knew the condition of the car and its value both before *613and after the collision, and what the damage to the car amounted to as the result of the occurrence.

The plaintiff in his affidavit also calls attention to the difficulties of reaching the county seat of Ulster county by railroad from the city of Binghamton, the place of residence of his family and witnesses.

We think the place of trial should have been changed to the county of Ulster. That was the county in which the occurrence complained of by both parties took place; and the scene of the collision was but a few miles from the city of Kingston, where the courts of the county are held. Furthermore, the bill which was rendered to the defendant under the plaintiff’s direction some seventeen days after the collision, as being substantially a statement of the items of the expenses incurred by the plaintiff on account of the accident, contains the following statements: “Repair bill Van Benscoten, Kingston, $99.88. Additional payment to employees at garage, $14.00. Painting car, $90.00. Bill at Binghamton garage fixing the steering gear, $5.00. * * "" All the above items have been actually paid by Mr. Rogers with the exception of the $90.00 for painting the car. A rough job of painting was done on the car at Kingston but the paint is much darker than the original color of the car and repainting is necessary, the cost of which is estimated at $90.00.”

Unquestionably the persons who made the repairs to plaintiff’s car at Kingston are material witnesses as to the damage to such car, and warrant the statement in the replying affidavit that it will be necessary for plaintiff to call witnesses on the trial of the action who reside in Ulster county. The replying affidavit also calls attention to the fact that the only repairs specifically mentioned in such bill of items as having been made at Binghamton are the items of five dollars for fixing the steering gear and of ninety dollars for repainting the car. The answering affidavit does not particularize as to the repairs made at Binghamton, and if, as defendant suggests, this repair item of five dollars is the only item as to which three of such witnesses are claimed to be necessary, such claim hardly warrants consideration.

As to the provision of the order consolidating the actions, *614the defendant in his notice of motion asked in the alternative for such consolidation, and stated in the affidavit made by him upon which this motion was founded, *“*deponent is willing to withdraw and discontinue his said action brought in the County of New York, or will consent that the same be consolidated with the said action now pending in the County of Broome, brought against him by said Morris N. Rogers, providing the place of trial of said action of *Rogers*v. *Blum*he changed from the County of Broome to the County of Ulster.”

In his brief before this court the defendant also says, *“*the appellant offered and still offers to withdraw and discontinue his action brought in New York County, if a change of venue to Ulster County is granted in the action brought by the respondent in the Coimty of Broome.” The appellant having interposed his cause of action as a counterclaim in this action, it is unnecessary that the respondent should he troubled by the continuance of the New York county action.

The order appealed from must be reversed and an order entered changing the place of trial of this action from the county of Broome to the county of Ulster.

All concurred.

Order appealed from reversed and place of trial changed from the county of Broome to the county of Ulster, with costs to appellant to abide event, on condition that defendant within twenty days serve a stipulation upon the plaintiff’s attorney discontinuing the action brought against the plaintiff by the defendant in New York county, without costs; if he shall fail to serve such stipulation, the order is affirmed, with ten dollars costs and disbursements.