Ludlow v. Single Paper Co. — 132 A.D. 601

Majority

p. 601

Edward B. Ludlow, Respondent, v. John Single Paper Company, Limited, Appellant.

Third Department,

May 21, 1909.

Headnote

Practice — change of venue — materiality and convenience of witnesses — place of contract.

On an application for a change of venue for the convenience of witnesses in an action for the purchase price of paint, affidavits of the plaintiff showing that certain witnesses have purchased or used paint “ identical with the paint in question,” but not showing that any of the witnesses ever saw or had any of the paint in question, do not establish their materiality on the question of quality.

On such an application, where there is no preponderance of material witnesses in favor of the plaintiff, where all the transactions took place in the defendant’s county, where the paint was delivered there and such of the paint as had been sold was used there, the venue should be changed to the defendant’s county, especially where the action must necessarily have been brought there, except for an assignment of the claim.

Appeal by the defendant, the John Single Paper Company, Limited, from an order of the Supreme Court, made at the Greene Special Term and entered in the office of the clerk of the county of Greene on the 4th day of January, 1909, denying, the defendant’s motion to change the place of trial from the county of Greene to the county of Onondaga for the convenience of witnesses.

G. Harold Merry, for the appellant.

H. Leroy Austin, for the respondent.

The action is one for the recovery of the purchase price of paints sold to the defendant by the Tropical Oil Company, an Ohio C9r

p. 602

poration, the account for which has been assigned to the plaintiff who is the eastern sales manager and salesman of such company, and who resides in Greene' co,unty. The defendant denies the material allegations of the complaint, and also sets up'a breach of warranty and misrepresentation as to the quality of the paint. The affidavit of the defendant names ten witnesses, including its president, all of whom reside in Onondaga county except one, who resides in an adjoining county. The plaintiff’s affidavit names eleven witnesses residing in Greene county. It is urged on behalf of the plaintiff that one of the defendant’s.witnesses is an expert, and that four of the other witnesses are employees of the defendant, and, therefore, that none of these witnesses nor the president should be considered upon this application. We may concede without deciding this, but still the motion should have been granted. The plaintiff’s witnesses are all on the question of the quality of the paint, which is the principal question to be tried, and it is stated that it will be shown by nine of them that they have purchased or used-paint “ identical with the paint in question.” It is not pretended -that any of these nine witnesses ever saw or had- any of the paint which Was shipped to the defendant, but that they, liad purchased or used paint manufactured by the plaintiff’s assignor and shipped to others. It is not apparent how they could know anything concerning the paint in question. Two only of the plaintiff’s witnesses are shown to be in a position to give material evidence on the issues involved here," one of whom it is claimed went to Syracuse and purchased from the defendant a portion of the paint which it received from the Tropical Oil Company, and another that, he formerly worked for that company and that he was familiar with the composition and manufacture of the paint in question. They are, therefore, matérial witnesses on the question f quality.- This being the situation, there is no preponderance in the number of material witnesses in favor of the plaintiff over those of the defendant. All the transactions took place in Onondaga county. This sales agent, who is now the plaintiff, and- the defendant made the contract there, and the paint was delivered there. Such of it as had been sold has been used there. If the- claim had not been assigned to the plaintiff the action would necessarily have been required to be brought there, "tinder such circumstances we think

p. 603

the action should be tried there. The order should be reversed, with ten dollars costs arid disbursements, and motion granted, with ten dollars costs to abide the event.

All concurred.'

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.