John D. Church and Lillie D. Church, as Executrix, etc., of Samuel O. Church, Deceased, Copartners Composing the Firm of S. O. Church & Brother, Respondents, v. John G. Swigert, Appellant

John D. Church and Lillie D. Church, as Executrix, etc., of Samuel O. Church, Deceased, Copartners Composing the Firm of S. O. Church & Brother, Respondents, v. John G. Swigert, Appellant. Change of venue to the county in which a contract sued upon was made and was to be performed. Upon an appeal from an order denying a motion made by a defendant in an action to change the place of trial thereof from the county of New York to the county of Niagara, it appeared that the action was brought to recover for goods sold and delivered under a contract made in the county of Niagara and which was to be performed in that county; that the plaintiffs resided in the county of New York, and the defendant in the county of Niagara; that a majority of the witnesses whose evidence would be material resided in the county of Niagara or in an adjoining county. Held, that the motion to change the place of trial to the county of Niagara should have been granted. Appeal by the defendant, John G. Swigert, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of September, 1904, denying the defendant’s motion to change the place of trial of the action from the county of Hew York to the county of Hiagara. Aaron G. Thayer, for the appellant. John A. Kamping, for the respondents. [MAJORITY — Ingraham, J.:] Ingraham, J.: The action is for goods sold and delivered. The answer is a general denial, and for a separate defense and a counterclaim it alleges a contract by which the plaintiffs promised to sell the defendant three carloads of goods ; that plaintiffs delivered one carload, but failed to deliver the remainder, and demands an affirmative judgment against the plaintiffs. The plaintiffs are residents of the county of Hew York and the defendant a resident of the county of Hiagara. The contract was made in Hiagara county and was to be there performed, and this fact is to be considered in determining the place of trial. (General Rules of Practice, rule 48.) While many of the witnesses who it is stated in the affidavits are to be called upon the trial, could quite clearly give no competent evidence, I am satisfied that a majority of the witnesses whose evidence will be material reside in the county of Niagara or an adjoining county, and considering the place where the contract was made and was to be performed I think the motion should have been granted. It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Yaw Brunt, P. J., Patterson, Hatch and Laughlin, JJ. concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.