Belden v. Schapiro — 138 A.D. 669

Majority

p. 669

Elmer E. Belden, Respondent, v. Jacob Schapiro and Joseph Anderson, Appellants.

Third Department,

May 13, 1910.

Headnote

Venue — change of place of trial — convenience of witnesses and ends of . justice.

Where -in an action for goods sold and delivered, brought in Saratoga county by the assignee of a foreign corporation doing business in New York city, the answer alleges a breach of warranty and it appears that all the witnesses resided in or about New York county where the cause of action arose, a motion to change the venue to the latter county should be granted.

Appeal by the defendants, Jacob Schapiro and another, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Saratoga on the 1st day of March, 1910, denying the defendants’ motion for a change of venue from the county of Saratoga to the county of New York, on condition that plaintiff give a bond for the payment to the defendants or to their attorney, if the defendants succeed in the action, of all witnesses’ fees legally taxed, and such sums as they may actually and in good faith pay to witnesses for reasonable expenses and which are not taxable.

p. 670

Morris Meyers, for the appellants.

Boclcwood, McKnight <& McKelvey [L. B. McKelvey of counsel], for the respondent.

The Silver Hat Company, a Connecticut corporation, was transacting business in the city of New York,-and there sold and delivered to the defendants merchandise for the purchase price of which recovery is sought. !

The answer is breach of warranty, and that the goods were unmarketable, and the contract was changed by a new agreement; that the corporation was transacting business in the State of New York in violation of the statutes of the State. All of the witnesses reside in or about.the city of New York. The cause of action was assigned to the plaintiff evidently for the convenience of the hat company, which is apparently the real party in interest. The causé of action should be tried in the county where it arose and where the witnesses are. There is no. reason -why the trial should be had in Saratoga county, except that the hat company or its. attorneys have selected an assignee who.lives in that county. The bond required by the order does not justify the retention of the action in1 Saratoga county, and a reimbursement to the defendants does not avoid the question that the ends of justice and the convenience of witnesses require that the trial should take place where the cause .of action arose and the witnesses reside.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and, the 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 event.