It is clear .that the defendant’s motion to change the place of trial to St. Lawrence county must be granted. It is their right, prima facie, to have the action tried in St. Lawrence county, that being the county in which they reside, and the plaintiff being a non-resident. (Code, § 125.)
_ It being the defendant’s right in the first instance to have the place of trial changed from the county of Rew York to the *149county of St. Lawrence, subject to the power of the court to retain the county of Hew York as the place of trial, or to change the place of trial from St. Lawrence to Hew York for sufficient reasons; the question then is, has the plaintiff shown such reasons ? The plaintiffs’ papers show five witnesses residing in Philadelphia; the defendant shows some fifteen witnesses residing in St. Lawrence, and two in Jefferson county adjoining. The plaintiffs’ witnesses residing out of the State can be examined by commission, and could not be compelled to attend the trial even if in Hew York. If there was doubt as to the materiality of the defendant’s witnesses, the convenience of the plaintiffs’ Philadelphia witnesses would not be a sufficient reason for retaining Hew York as the place of trial.
Hor do I think the plaintiff shows that a fair and impartial trial cannot be had in St, Lawrence county. There are thirteen defendants, several of them members of the bar of St. Lawrence county, and one of them a justice of the Supreme Court of that judicial district, and a resident of St. Lawrence county; and the Insurance Company was organized on the mutual plan, the members of it being mostly residents of St. Lawrence county. For these alleged reasons, the plaintiff alleges that the trial will produce an excitement in St. Lawrence county, and that a fair and impartial trial cannot be had there. It would, I think, be a most extraordinary presumption from these allegations, that a fair and impartial judge and jury could not be found to try the cause in St. Lawrence county, without any attempt to get such trial in that county. Conceding the popular excitement as to the subject matter of the action in that county, that would not be sufficient ground for denying the defendant’s motion, or for granting the plaintiffs’. (The People a. Wright, 5 How. Pr. R., 23, and cases there cited.)
The defendant’s motion to change the place of trial to St. Lawrence county should not be prejudiced by the motion made last winter on behalf ,of the defendants, Lillie and Crary. The defendant (Blood) who makes this motion, had not then been served with process, and was in no way a party to the motion. When that motion was made, it appeared that only three of the defendants had been served, and that no notice had been served or demanded to change the place of trial made by William B. Goodrich, one of the defendants served who had answered.
*150The motion of the defendant Blood to change the place oí trial from New York to St. Lawrence county must be granted, and the motion of the plaintiff to change the place of trial from St. Lawrence county to New York must be denied, with $10 costs to defendant.