Opinion
February 7, 1908.
Grosvenor H. Backus, for the appellant.
William Rosin, for the respondent.
Action to recover damages for the breach of a contract for the sale and delivery of certain burlap bags, alleged to have been made between plaintiff and a corporation, the assets of which it is alleged were assumed and taken over by the defendant.
The answer puts in issue the material allegations of the complaint and alleges that the defendant was not in existence at the time the alleged contract was made.
The plaintiff is a resident of the county of New York and the defendant has its principal office and place of business in the county of Monroe, where the alleged contract was made and to be performed. This fact is to be considered in determining the place of trial. (General Rules of Practice, rule 48.) The moving papers show that the witnesses on the part of the defendant reside in Monroe county, and while it is possible that all of those mentioned may not be necessary at the trial, it is quite apparent that whatever witnesses are necessary to enable the defendant to properly defend the action reside in that county. The plaintiff has only one witness, besides himself, who resides in the county of New York. Taking into consideration the place where the contract was made and to be performed, and that a majority of the witnesses reside in the county where it is sought to have the action tried, I am of the opinion the motion should have been granted.
The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
PATTERSON, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.