Hyperlawhypertext legal database Studebaker Bros. v. Western New York & P. Traction Co. 125 N.Y.S. 224

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

125 N.Y.S. 224 Court N.Y. App. Div. Decision date 1910-10-21 English

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p. 224
(140 App. Div. 308.)
STUDEBAKER BROS. CO. OF NEW YORK v. WESTERN NEW YORK & P. TRACTION CO.
(Supreme Court, Appellate Division, First Department.
October 21, 1910.)

Headnote

Venue (§ 52[1] )—Change oe Venue—Place oe Contract. '
Where, in án action for the price of an electric automobile, in which defendant claimed breach of warranty, the parties stood on a substantially equal footing as to the convenience of witnesses, the place where the 'contract was made and where the subject-matter of the action was" located determines the place of trial.
[Ed. Note.—For other cases, see Venue, Cent. Dig. §§ 76, 77; Dec. Dig. § 52.*]
p. 225
Appeal from Special Term, New York County.
Action by the Studebaker Bros. Company of New York against the Western New York & Pennsylvania Traction Company.' From a Special Term order denying defendant’s motion for a change of venue from New York county to Cattaraugus county, it appeals.
Reversed, and motion granted.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-LIN, CLARKE, and SCOTT, JJ.
Samuel F. Moran, for appellant.
Mark W. Norman, for respondent.

Defendant appeals from an order denying its motion to change the place of trial 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 Olean, Cattaraugus 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. Where-ever 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 where contract was made, and where the subject-matter of the action is to be found, will determine the place of trial.

Order appealed from reversed, with $10 costs and disbursements, and motion to change the place of trial granted. All concur.