Klienhans v. Whiting — 33 N.Y. St. Rep. 956

Majority

p. 956

Frederick Klienhans, App’lt, v. Charles L. Whiting et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1890.)

Headnote

Venue—Breach oe contract.

Defendants, who were in business in Buffalo, made a boiler for use on plaintiff’s boat in the county of Monroe, and agreed that it should stand a pressure of 140 pounds and be allowed to do so by the government inspectors, On inspection it proved defective and plaintiff was damaged. Defendants undertook to repair it, but did not succeed. The inspection

p. 957

and repairs took place in Monroe county. In an action to recover such damages, Held, that as all the matters in issue arose in Monroe county, the venue was properly in that county, and that an order changing the place of trial to Brie county, for .the convenience of witnesses, was improper.

(Corlett, J., dissents.)

’Appeal from order changing place of trial from the county of Monroe to the county of Brie.

Action to recover damages alleged to have been sustained by the defective construction of a boiler. Plaintiff resides in the county of Monroe and runs a passenger steamer between Charlotte and Long Pond, in that county. In January, 1889, he ordered of defendants, who are engaged in business in Buffalo, an engine for use in his steamer, and they agreed to furnish one that would stand a pressure of 140 pounds to the square inch and be allowed to carry that pressure by the government inspectors. In May following they delivered a boiler to plaintiff, but when tested by the government inspector it was found defective and gave out long before the required pressure was put upon it. Plaintiff was obliged, in consequence, to hire another steamer and spend large amounts in repairs and for the wages of his men while idle.

The answer alleged that the boiler was broken because it had been .tampered with and injured by plaintiff’s servants before the test was made. It also set up counterclaims for a balance due on the boiler and for repairs. Plaintiff’s reply admits the balance to be due, but alleges that such repairs were made by defendants on their own motion, and to remedy the defects and comply with the contract. The inspection and repairs took place in Monroe county.

J. & Q: Van Voorhis, for app’lt; White & Simons, for resp’ts.

Order appealed from reversed, with ten dollars costs and disbursements, for the reason that all the matters in issue arose in Monroe county.

Dwight, P. J., and Macomber, J., concur.

(dissenting).—In January, 1889, the plaintiff made a contract with the defendants for the construction of a boiler for the agreed price of $650, and eighteen dollars extra for an ash-pan. The boiler was completed and delivered, and the plaintiff paid $550 of the purchase price to the defendants. The complaint alleges, in substance, that the defendants were doing business in the city of Buffalo, under the firm name of George W. Tifft, Sons & Co., and were engaged in the" construction and sale of steam boilers; that the plaintiff resides in Rochester, and is in the months of June, July, August and September of each year engaged in running a passenger steamer from the village of Charlotte to a summer resort on the shores of Lake Ontario; that the defendants agreed to build a first-class boiler at a standard pressure of 150 pounds to the square inch, and which amount of pressure an official inspector of steam boilers would allow it to carry; that the boiler was delivered to the plaintiff in Buffalo in May,

Dissent

p. 958

1889; that it proved defective, and was so pronounced by the government inspector; that by reason thereof the plaintiff was compelled to delay running several weeks, and was subjected to great expense and damage.

The answer puts in issue the alleged defective construction, admits that it did not stand the inspector’s test, but alleges that this was not because of improper construction, but of the misconduct of the plaintiff’s workmen before the government inspection.

The affidavits on each side show more than twenty witnesses, the defendants’ residing in the county of Erie, and the plaintiff’s in the county of Monroe. Many of the plaintiff’s witnesses are upon the time the boat was delayed, and the loss by reason thereof, including the expense, and various items of damage. Most of the defendants’ witnesses are stated to be for the purpose of proving that the boiler was constructed according to contract.

It will be observed that there is no controversy as to the boiler being defective when examined by the government inspector. The material question on that subject on the trial will be whether this defect existed when the boiler was constructed and delivered, or whether it was caused otherwise before the inspection. It is obvious, therefore, that the defendants must prove the making and delivery of a boiler which in all respects complied with the contract. What caused or produced the defect, in the nature of things, must be litigated upon the trial. The contract for the boiler was made in the city of Buffalo; it was made and delivered there; the defect was ascertained in Monroe county. But the cause of action, if it exists, arose in Erie, for the defects in the boiler must have existed at the time of the delivery, in which event plaintiff’s cause of action was then complete, so that proof of proper construction by the defendants will be material.

There will be no substantial controversy as to the condition of the boiler when examined by the government inspector, so the central contention will be whether it was properly constructed, or injured by the plaintiff’s employees after delivery.

On the question of damages, the plaintiff can have no difficulty, for, by the use of a few witnesses, he can show the delay, and all legitimate items of damage. The general rule on the subject of damages is the difference between the value of the boiler as it was contracted to be, and as it was. Wood v. Carleton, 25 N. Y. State Rep., 172.

And, under certain circumstances, the rental value of the boat while necessarily delayed. Griffin v. Colver, 16 N. Y., 489 ; Cassidy v. Le Fevre, 45 id., 562 .

Having reference to the general rule on the subject of changing places of trial, the order of the special term was correct, and should be affirmed.

' Order reversed, with ten dollars costs and disbursements.