Louis M. Shaff and Samuel Barnett, Respondents, v. Matthew A. Rosenberg, Appellant

Louis M. Shaff and Samuel Barnett, Respondents, v. Matthew A. Rosenberg, Appellant. First Department, December 21, 1906. Practice — when place of trial should be changed.', The plaintiffs, residing in the county of New York, sold goods to the defendant, . residing in the county of Monroe. The sale was made by the plaintiffs’ agent in the defendant’s county and in an action for goods sold the defense was that . the goods did not correspond to the samples. ' On a motion to change the place of trial to Monroe county for the convenience of the-witnesses, Held, that as the contract was made in defendant’s county as well as the examination of the goods on delivery, the action should be transferred to that county,, although both parties had witnesses in their own counties who would testify as to the condition of the goods on delivery; That two or three witnesses each as to the condition of the goods was sufficient, and that as the whole transaction had taken place in the defendant’s county, and the greater number of witnesses resided there, the action should be tried there. Appeal by.the defendant, Matthew A. Bosenberg, fronpan 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 28th'day of August, 1906. Percival De Witt Oviatt, for the appellant. Edward W. Drucker, for the respondents. [MAJORITY — Patterson, P. J.:] Patterson, P. J.: This is an appeal from an order denying a motion to change the place of trial of this action from the county of New York to Mon- . roe county. The application seems to have been made on the ground -of the convenience of witnesses. The pleadings are not contained in the moving papers, but from the affidavits it would appear that the action is for goods-sold and delivered on two alleged contracts of sale. As to one the defendant admits liability, unless it may be as to, a credit for the amount of certain discount to which he claims he was entitled for the goods embraced in that cause of action. As to the second cause of action the defense'', is that goods were sent to the defendant which did not correspond with the samples by which they were sold. It seems that the plaintiffs are merchants in New York city and the defendant is a dealer in clothing in Bochester, Monroe county. The contracts, whatever they weie, were made by an agent or sales. man of the plaintiffs at Bochester; the goods' were delivered at Bochester; the examination thereof was made at Bochester; the witnesses having cognizance of what their contracts were and of what the condition of the goods was reside at Bochester. Both the plaintiffs and the defendant in .their affidavits name quite a number of witnesses whom they say will testify to the condition of the goods and what they were; on the one side, that they did correspond to the order given by the defendant, and on the other, that they did not; but it is perfectly obvious that neither side requires more than two or three witnesses to that issue. It is apparent that the whole of the transaction having taken place at Bochester and the greater number of witnesses required in the case residing there, the action should be tried there. The order should be reversed, with ten dollars costs and disbursements, arid the motion to change the venue granted, with' ten dollars costs. Ingraham, McLaughlin, Clarke and Houghton' JJ., concurred.. Order reversed, with ten dollars costs and disbursements, and motion to change venue granted, with ten'dollars costs. Order filed.