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Brody v. C. A. Weed & Co.

137 A.D. 754 Court First Department, Decision date 1910-04-22 English

Delivered by Scott, J.:

Contents

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p. 754
Jacob Brody and Albert Hoffberg, Copartners, Doing Business under the Firm Name and Style of Brody & Hoffberg, Respondents, v. C. A. Weed and Company, Appellant.
First Department,
April 22, 1910.

Headnote

Practice — place of trial — motion to change venue.
Where, on a motion to change the venue of an action for goods sold and delivered, it appears that the principal issue is as to the. quality of the goods, and there is no such preponderance of necessary witnesses that the motion can he decided on that ground alone, the action should he tried in the county where the contract was made and in which the goods are stored.
Appeal by tlie defendant, C. A. Weed and- Company, from an 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 21st day of February, 1910.
Albert Ritchie, for the appellant.
Jacob Manheim, for the respondents.

Appeal from order denying motion to change, the place of . trial from the county.of New York to the county of Erie. The action is for goods sold .and delivered. The defense.is a. breach of warranty and rejection of the goods, which are now stored in Buffalo. The principal issue is as to the quality of the goods. Each side presents along list of witnesses whose evidence.is claimed to he material and necessary, and each side claims that the cost of transporting its necessary witnesses from New York to Buffalo, or vice vérsa, will cost more than the whole amount involved in the action. " The case, however, must be tried somewhere, and one party

p. 755
or the other must be subjected to this expense. There is no such preponderance of apparently necessary witnesses that the motion can be decided upon that ground alone. Under these circumstances thefact that the contract was made in Buffalo, and that the goods, the-quality of which is in dispute, are stored in that city indicates Erie county as the proper place of trial. (Shaff v. Rosenberg, 116 App. Div. 366 ; Denser v. Grewen. 133 id. 707; Wallace v. Mamimg, 130 id. 894.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion to change place of trial to Erie county granted.

Ingraham, P. J., Lahghlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.