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Studebaker Bros. v. Western New York & Pennsylvania Traction Co.

140 A.D. 308 Court First Department, Decision date 1910-10-21 English

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p. 308
Studebaker Brothers Company of New York, Respondent, v. Western New York and Pennsylvania Traction Company, Appellant.
First Department,
October 21, 1910.

Headnote

Practice — change of venue — convenience of witnesses — place of contract.
Where on a motion to change a place of trial for the convenience of wifnesses in an action for goods sold, the number of witnesses named by both parties is substantially the same, the trial should be had in the county where the contract was made and where the subject-matter of the sale is to-be found.
Appeal by the defendant, the Western New York and Pennsylvania Traction 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 June, 1910.
Samuel F. Moran, for the appellant.
Marie W. Norman, for the respondent.

Defendant appeals from an order denying its motion to change the place of trial from New York county to Cattaraugus county.

The action is for the price of an electric automobile -omnibus sold by plaintiff to defendant. The defense is that the omnibus did not comply with the warranty upon which it was sold, and that defendant, consequently refused to accept it. Each party names about a dozen witnesses who are alleged to be necessary and material. All of them appear to be in the employ of one or the other of the parties. The contract was made in Clean, Cattarugus county; the omnibus was tested there, and it still remains there. .In so far as concerns the inconvenience of procuring witnesses to attend upon the trial the parties stand upon a substantially equal' footing. Wherever the cause is tried one of the parties must be put to inconvenience and expense.

Under such circumstances, it is the general rule that the place

p. 309
where the contract was made, and where the subject-matter of the action is to be found, will determine the place of trial.

The order appealed from is.reversed, with ten dollars costs and disbursements, and the motion to change the place of tidal granted.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

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