This action was brought in Bockland county, the plaintiff and the surviving defendant residing there. The latter was sued to recover possession of goods seized by him under an attachment sued out by one Hyman, who was a codefendant. It seems that Hyman undertook the defense of the action, and the sheriff, in effect, entrusted the defense to him. Hyman moved, in the second district, to change the place of trial from Bockland to Hew York for the convenience of witnesses. The plaintiff resisted the motion, but it was granted. The sheriff claims that this motion was made and granted without his assent or knowledge. He afterwards moved to vacate the order, which was done, but on appeal the general term of the second department reversed the order of the special term, on the ground that the sheriff had acquiesced in the change of place of trial, and was, therefore, too late on his motion. The case has been twice tried in the city of Hew York, the first trial occupying ten days and the second nine days, and each resulting in a disagreement of the jury.
The original motion to change the place of trial from *216Rockland to Hew York obviously ought not to have been granted, but it seems equally clear that the general term was right in holding that acquiescence had cured the error.
We cannot, therefore,' grant this motion, on the ground that the place of trial ought to have been retained in Rock-land county. The only question is whether, under the peculiar circumstances now existing, the change ought not to be made.
Both of the present parties reside in Rockland county. The defendant is prosecuted for acts done in his official character as sheriff. His codefendant is dead, and is shown to have died insolvent.
The cause of action arose wholly in Rockland county. A large number if not the most of the witnesses on both sides reside in that county. Two trials have already been had in Hew York, both of which have resulted in the disagreement of the jury. Hearly three weeks of the time of our courts has already been taken up with the trials. The defendant swears that it will be almost if not quite impracticable to procure the attendance of his witnesses in the city of Hew York again. It is obvious, we think, that it will be convenient for the witnesses on both sides to attend a retrial of this action in Rockland county. And our knowledge of the condition of the calendar in the two counties satisfies us that less delay will attend a trial in Rockland of an issue so old as this, than must attend its trial in the city. Besides, we think it is our duty to consider the state of business in the circuits of Hew York, and the great length of time already lost by the. courts of Hew York in the trials that have already been had.
On full consideration, we think that the private interests of the parties and the ends of justice, as between them, will be fully as well served by a trial in Rockland as in Hew York, and that the public interests will be better served if the change be made. We think, therefore, that the order of the court below should be reversed and an order entered *217changing the place of trial to Rockland county, without costs to either party of the motion on this appeal.
Note. —An order was thereupon entered changing the place of trial back to Rockland county, and directing the New York county clerk to forthwith deliver to the clerk of Rockland county all the papers and documents in this action on file in his office, pursuant to section 988 of the Code of Civil Procedure. [Rep.Barrett, J., concurs.