Edward Jacobson, Respondent, v. German-American Button Company, Appellant

Edward Jacobson, Respondent, v. German-American Button Company, Appellant. First Department, February 7, 1908. Practice — change of venue for convénience of witnesses — place of con- ■ tract considered. On a motion to change the venue of an action to recover for a breach of contract to sell and deliver goods made on the ground of convenience of witnesses, the county where the contract was made and to be performed may be considered. Where a defendant moving to change the place of trial shows that the contract was made and to be performed in the county of his residence where the greater number of witnesses reside, while the plaintiff has but a single witness besides himself in the county where the venue is laid, the place of trial should he changed to the former county. Appeal by the defendant, the German-American Button Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1907, denying the defendant’s motion to change tlie place of trial of the action from the county of New York to the county of Monroe for the convenience of witnesses. Grosvenor H. Baclcus, for. the appellant. William Hosin, for the respondent. [MAJORITY — McLaughlin, J. :] McLaughlin, J. : Action to recover damage's for'the breach of a contract for the sale and Jhlivery of certain burlap bags, alleged to have been made between plaintiff and a corporation, the assets of which it is alleged were assumed and taken over by the defendant. ' The answer puts in issue the material allegations of the complaint • and alleges that the defendant was .not in existence at the time the alleged contract was made. The plaintiff is a resident of the county of New York and the defendant has its principal office and place of business in the county of Monroe, where the alleged contract was niade and to be per- ■ formed. This fact is to be considered in determining the place of trial. (General Buies of Practice, rule 48.) The moving papers show that the witnesses on the part of the defendant reside in Monroe county, and while it is possible that all of those mentioned may not be necessary at the trial, it is quite apparent that whatever witnesses are necessary to enable the defendant to properly defend the action . reside in that county. The plaintiff has only one witness, besides himself, who resides in the county of New York. Taking into consideration the place where the contract was made and to be performed, .and that a majority of the witnesses reside in the county where it is sought'to have the action tried, I am of the opinion the motion should have been granted. The order appealed from,'therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.