Morris Pinkus, Respondent, v. United Cloak and Suit Company, Appellant

Morris Pinkus, Respondent, v. United Cloak and Suit Company, Appellant. Second Department, February 28, 1908. Trial — venue changed for convenience of witnesses. When the answer in an action for breach of contract of employment justifies the discharge because of the incompetency of the plaintiff, who was employed at the defendant’s factory in. a county other than that in which the venue is laid, which defense must be established by the evidence of persons in the factory and customers in that locality, and it appears that the defendant will call as many witnesses as plaintiff or more, the place of trial should be changed, for the rule in such a case is that the'place of trial’ should be in the county where the cause of action arose, especially so when the plaintiff’s answering affidavit shows that a judgment against him will be uncollectible. Appeal by the defendant, the United Cloak and Suit Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the ‘8th day of Uovember, 1907, denying the defendant’s motion to change the place of trial from the county of Kings to the county of Onondaga. Thomas Woods, for the appellant. Sydney H. Palmer, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: , This is an action for damages for-breach of a contract of employment for one year by á discharge. The plaintiff was employed as a designer and foreman in the defendant’s manufactory of women’s garments at Syracuse in Onondaga county. A defence is pleaded that he was discharged for neglect and incompetehcy, by which a large number of garments were improperly fitted and made, and rejected by customers therefor, to the defendant’s damage $1,500, for which judgment is prayed. The proof of this depends on the evidence of persons in the factory, and customers in that locality. It is obvious from the record that the defendant will call as many witnesses as the plaintiff or more. In such a case it is the rule in transitory’ actions that the place of trial should be. the county in which the cause of action arose (Hausmann v. Moore, 7 App. Div. 459; Adriance, Platt & Co. v. Coon, 15 id. 92; Osterhout v. Rabe, 39 id. 415). It is manifest that the defendant cannot try this case in Kings county without, being, put to extra expense and inconvenience which it should not be subjected to inasmuch as the cause of action arose in its county ; all the more so, as the plaintiff’s affidavit shows that a judgment could not be collected of him. The plaintiff gives a list of witnesses in Brooklyn who, he says, will testify that he is a competent or careful designer. It is doubtful if their evidence will become admissible. . The evidence-of the defendant has necessarily to be of specific acts of neglect and incompetence ¡which justified his discharge, and that is what will have to be met. The order should be reversed and the motion granted. < Woodwabd, Jenks, Bich and Miller, Jj., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.