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Mullin v. Curtis

129 N.Y.S. 916 Court N.Y. App. Div. Decision date 1911-06-02 English

Delivered by LAUGHRIN, J.

Contents

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p. 916
MULLIN v. CURTIS.
(Supreme Court, Appellate Division, First Department.
June 2, 1911.)

Headnote

Venue (§ 70[1] )—Change op Venue—Convenience op Witnesses—Determining Factors.
On conflicting affidavits as to the convenience of witnesses, the place of trial of an action on a contract will be changed to the county where the contract was negotiated, made, and to be performed; its terms, as well as the performance thereof, being controverted.
[Ed. Note.—For other cases, see Venue, Cent. Dig. §§ 122-126; Dec. Dig. § 70.[1] ]
Appeal from Special Term, New York County.
Action by Jay M. Mullin against Kate Curtis. From an order denying her motion to change the place of trial from the county of New York to the county of Monroe, defendant appeals.
Reversed, and motion granted.
Argued before INGRAHAM, P. J., and McFAUGHLIN, FAUGHLIN, CLARKE, and SCOTT, JJ.
George D. Reed, fór appellant.
Isadore Finkler, for respondent.

The Mullin Film Service was a domestic corporation having its principal office in the city of Syracuse, N. Y., and by a contract negotiated and made in the city of Rochester, N. Y., it rented to the defendant certain films, to be delivered to and used by her at her theater in the latter city. The action is on an assigned claim for rent of films, alleged to be due and owing under said contract.

The defense interposed is that the films on which rental is claimed to be due were found on delivery not to be according to the contract, and were returned, and that the contract was on that ground rescinded. The terms of the contract, which was negotiated and made in Monroe county and to be performed there, as well as the performance thereof, are controverted. On conflicting affidavits with respect to the convenience of the material witnesses these are deemed important conditions, and on the facts here presented require that the place of trial should be changed to Monroe county.

It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.