Shaff v. Rosenberg

Full title: LOUIS M. SHAFF and SAMUEL BARNETT, Respondents, v . MATTHEW A. ROSENBERG…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 21, 1906

116 App. Div. 366 (N.Y. App. Div. 1906)

101 N.Y.S. 892

Opinion

December 21, 1906.

Percival De Witt Oviatt, for the appellant.

Edward W. Drucker, for the respondents.

PATTERSON, P.J.:

This is an appeal from an order denying a motion to change the place of trial of this action from the county of New York to Monroe county. The application seems to have been made on the ground of the convenience of witnesses. The pleadings are not contained in the moving papers, but from the affidavits it would appear that the action is for goods sold and delivered on two alleged contracts of sale. As to one the defendant admits liability, unless it may be as to a credit for the amount of certain discount to which he claims he was entitled for the goods embraced in that cause of action. As to the second cause of action the defense is that goods were sent to the defendant which did not correspond with the samples by which they were sold.

It seems that the plaintiffs are merchants in New York city and the defendant is a dealer in clothing in Rochester, Monroe county. The contracts, whatever they were, were made by an agent or sales man of the plaintiffs at Rochester; the goods were delivered at Rochester; the examination thereof was made at Rochester; the witnesses having cognizance of what their contracts were and of what the condition of the goods was reside at Rochester. Both the plaintiffs and the defendant in their affidavits name quite a number of witnesses whom they say will testify to the condition of the goods and what they were; on the one side, that they did correspond to the order given by the defendant, and on the other, that they did not; but it is perfectly obvious that neither side requires more than two or three witnesses to that issue.

It is apparent that the whole of the transaction having taken place at Rochester and the greater number of witnesses required in the case residing there, the action should be tried there.

The order should be reversed, with ten dollars costs and disbursements, and the motion to change the venue granted, with ten dollars costs.

INGRAHAM, McLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to change venue granted, with ten dollars costs. Order filed.