Brody v. C. A. Weed & Co.

Appeal from order denying motion to change, the place of . trial from the county.of New York to the county of Erie. The action is for goods sold .and delivered. The defense.is a. breach of warranty and rejection of the goods, which are now stored in Buffalo. The principal issue is as to the quality of the goods. Each side presents along list of witnesses whose evidence.is claimed to he material and necessary, and each side claims that the cost of transporting its necessary witnesses from New York to Buffalo, or vice vérsa, will cost more than the whole amount involved in the action. " The case, however, must be tried somewhere, and one party *755or the other must be subjected to this expense. There is no such preponderance of apparently necessary witnesses that the motion can be decided upon that ground alone. Under these circumstances thefact that the contract was made in Buffalo, and that the goods, the-quality of which is in dispute, are stored in that city indicates Erie county as the proper place of trial. (Shaff v. Rosenberg, 116 App. Div. 366; Denser v. Grewen. 133 id. 707; Wallace v. Mamimg, 130 id. 894.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion to change place of trial to Erie county granted.

Ingraham, P. J., Lahghlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.