Jay M. Mullin, Respondent, v. Kate Curtis, Appellant

Jay M. Mullin, Respondent, v. Kate Curtis, Appellant. First Department, June 2, 1911. Practice — change of venue — convenience of witnesses — place of contract. Where upon a motion for a change of venue of an action on contract the terms of which are in dispute, the number of material witnesses in each county seems to be about equal, the trial should be had in the county in which the contract was made and was to have been performed. Appeal by the defendant, Kate Curtis, from an order of the Silpreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on . the 28th day of March, 1911, denying the defendant’s motion 'to change the place of' trial from the county of New York to the county of Monroe.. George D. Reed, for the appellant. Isadore FinJcler, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: The Mullin Film Service was a domestic corporation having its principal office in the city of Syracuse, N. Y.; and by a contract negotiated and made in the city of Rochester, N: Y., it rented to the defendant certain films to he delivered to and used by her at her theatre in the latter city. The action is on an assigned claim for rent of films alleged to be due and owing under said contract. The defense interposed is that the films on which rental is claimed to he due were found on delivery not to he according to the contract, and were returned, and that the contract was on that ground rescinded. The terms of the contract, which was negotiated and made in Monroe county and to he performed there, as well as the performance thereof, are controverted. On conflicting affidavits with respect tó the convenience of the material' witnesses, these are deemed important conditions and, on the facts here. presented, require that the place of trial should lie changed to Monroe county. It follows, therefore, that the order should he reversed, with ten dollars costs and disbursements, and the' motion granted, with ten dollars costs. Ingraham, P. J., McLaughlin,- Clarke and Scótt, JJ., concurred. ■ v 1 Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.