Smerling v. Foss — 19 N.Y.S. 959

Majority

p. 959

Smerling v. Foss.

(Supreme Court, General Term, Second Department.

July 22, 1892.)

Headnote

- Change or Venue—Action ex Contractu.

In a suit for wages claimed on a contract made in R. county for services to be rendered at same place, the defense was that the contract was entered into on ‘ condition that plaintiff would inform himself as to the details of the business, which he failed to do; that he was incompetent, disobedient, and finally abandoned the work. Held, that the place of trial was properly changed to R. county, where the cause of action arose.

Appeal from special term, Kings county.

Action by William Smerling against Wilson P. Foss. From an order at special term at White Plains, changing the place of trial from Kings county to Rockland county, plaintiff appeals.

Affirmed.

Argued before Barnard, P. J., and Dykman and Cullen, JJ.

J. Edward Swanstroni, for appellant. Irving Brown, for respondent.

The contract for the employment of the plaintiff by the defendant is stated to have been made at Haverstraw, Rockland county. The place where the work of the employment was to be done was at Haverstraw. These are two controlling reasons in cases involving the place of trial of issue upon the contract. The agreement is not admitted, but is claimed by the defendant to have been entered into by him upon a condition that plaintiff would inform himself as to the operation and details of the business, which he failed to do. The answer also alleges incompetency to do the work of the employment; that he was disobedient, and finally abandoned the work. The place of trial was properly changed to Rockland county. Order affirmed, with costs and disbursements. All concur.