pears that the number of material witnesses required by each side is about the same, and that they will not be greatly inconvenienced by the trial of the action in either of two counties, the trial should be had in the county where the cause of action arose, or where the principal transactions took place. Hausmann v. Moore, 7 App. Div. 459 , 39 N. Y. Supp. 1089 ; Kubiac v. Clement, 35 App. Div. 186 , 54 N. Y. Supp. 773 ;
Osterhout v. Rabe, 39 App. Div. 413 , 57 N. Y. Supp. 336 . In the present case the contract which lies at the foundation of the plaintiff’s cause of action was entered into in the county of Erie, while its alleged breach occurred" in the county of Albany. The defendant puts at issue the allegation in the complaint as to the making of the contract, its nature and extent, and it also denies that there was any breach thereof; but it is apparent, we think, that the principal transaction—that is, the one concerning which the main controversy arises, and the one which will require the greater number of witnesses—took place in the city of Buffalo at the time the contract in question was entered into. And while neither party shows any very decided preponderance of witnesses as absolutely essential and material upon this issue, those relied upon by the plaintiff to sustain his contention are mostly laboring men, who could not well attend court in Albany without serious pecuniary loss and inconvenience, while nearly all of the defendant’s witnesses are its own officers and employés, several of whom become unnecessary by reason of the plaintiff’s admissions in his opposing affidavits. This circumstance may well have influenced the court below to exercise its judgment and discretion in favor of the plaintiff, and, upon the assumption that such was the case, we do not feel disposed to interfere. The determination of a motion to change the place of trial on the ground of the convenience of witnesses often resolves itself into the exercise of the discretionary power of the special term, and when thus exercised it should not be disturbed by an appellate tribunal, unless it is made clearly to appear that there has been an abuse of that power. Fitzgerald v. Payn, 78 Hun, 38 , 28 N. Y. Supp. 1033 ; Payne v. Electric Co., 88 Hun, 250 , 34 N. Y. Supp. 657 .
Some stress is laid by the respondent’s counsel upon certain technical defects in the plaintiff’s opposing affidavits, but, as there is nothing in the record to indicate that any such question was raised upon the motion, we do not feel at liberty to consider it now. The order appealed from should be affirmed.
Order affirmed, with $10 costs and disbursements. All concur, except WILLIAMS, J., who declines to concur in the affirmance of the order unless the plaintiff be required to make the stipulation as to the admission of facts which he offered in his opposing affidavits to make.