Ernest I. Mayer and Others, Comprising the Firm of A. G. Marshuetz & Company, Respondents, v. Thomas Madigan, Appellant

Ernest I. Mayer and Others, Comprising the Firm of A. G. Marshuetz & Company, Respondents, v. Thomas Madigan, Appellant. First Department, May 17, 1912. Venue — action on contract —issue as to agency. A defendant sued for the purchase price of goods' sold, claiming that the goods were purchased by his son on his own account and not as his agent, is entitled to have the place of trial changed to the county where the contract of sale was made and where the witnesses reside who can give material testimony on the issue as to the agency. Appeal by the defendant, Thomas Madigan, 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 21st day of March, 1912, denying the defendant’s motion tó change the place of trial to the county of Rensselaer. Cornelius Hannan, for the appellant. Francis Gilbert [A. S. Gilbert with him on the brief], for the respondents. [MAJORITY — Laughlin, J.:] Laughlin, J.: The basis of the motion is the convenience of witnesses. The action is brought to recover $155.45 with interest from the 23d day of May, 1911, being the purchase price of liquors alleged to have been sold to the defendant. The plaintiffs were copartenrs engaged in business as wholesale liquor dealers, having their office and place of business in the city and county of New York. The liquors were delivered to a saloon and restaurant at the junction of First and Fourth streets in the city of Troy, N. Y., where the contract for the purchase thereof was negotiated between one of plaintiffs and one Patrick T. Madigan, the defendant’s son. It is claimed on the part of the plaintiffs ■ that the defendant, who had theretofore owned and conducted the saloon and restaurant, owned and conducted it at this time, and that in purchasing the liquors bis son ¡acted as his agent. On the part of the defendant it is contended that he had no interest in the business, that his son was not his agent and owned and conducted the business and purchased the liquors on his own account. The principal issue, therefore, is as to whether the defendant owned and conducted the saloon and restaurant at the time in question. The witnesses who can give material testimony on this issue, as might be expected, for the most part reside in Rensselaer county, where the contract was made and performed. The plaintiffs went to that county to sell then-goods and although the amount involved is small, they should, in the circumstances, be required to' go there to enforce the contract. It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.