Opinion
December, 1904.
Aaron C. Thayer, for the appellant.
John A. Kamping, for the respondents.
The action is for goods sold and delivered. The answer is a general denial, and for a separate defense and a counterclaim it alleges a contract by which the plaintiffs promised to sell the defendant three carloads of goods; that plaintiffs delivered one carload, but failed to deliver the remainder, and demands an affirmative judgment against the plaintiffs.
The plaintiffs are residents of the county of New York and the defendant a resident of the county of Niagara. The contract was made in Niagara county and was to be there performed, and this fact is to be considered in determining the place of trial. (General Rules of Practice, rule 48.) While many of the witnesses who it is stated in the affidavits are to be called upon the trial, could quite clearly give no competent evidence, I am satisfied that a majority of the witnesses whose evidence will be material reside in the county of Niagara or an adjoining county, and considering the place where the contract was made and was to be performed I think the motion should have been granted.
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
VAN BRUNT, P.J., PATTERSON, HATCH and LAUGHLIN, JJ. concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.