Opinion
May 6, 1925.
Appeal from Supreme Court of Rensselaer County.
Jarvis P. O'Brien, for the appellant.
George F. Bodine, for the respondent.
Elmer G. Porter, a resident of Seneca county, sold three carloads of grapes to L.E. Fosgate Company of Boston. They were delivered to an initial carrier and by it transferred to the defendant, which transported them to their destination. Bills of lading were issued indicating that the property was consigned to E.G. Porter and that notification was to be given to L.E. Fosgate Company and providing that the property should not be delivered except on surrender of the bills of lading properly indorsed. Mr. Porter indorsed the bills of lading, attached to them a draft on L.E. Fosgate Company and negotiated the same to the plaintiff. L.E. Fosgate Company refused to honor the draft or to accept the property, which being perishable was sold at auction by the defendant and the proceeds of the sale are by it held for the benefit of the party entitled thereto. The plaintiff brought this action in Seneca county for conversion of the grapes, claiming that neither it nor its assignor had notice of the sale. The defendant claims that Mr. Porter was duly notified. Whether such notice was given constitutes the issue to be tried aside from the question of damages. Neither party residing within the meaning of the law in Seneca county where the action was brought, the place of trial was for that reason changed to Rensselaer county, a proper county for the commencement of the action. The plaintiff subsequently, by the order under review, procured the place of trial to be changed to Ontario county for the convenience of witnesses.
The cause of action did not arise in Ontario county. The plaintiff has no witness residing there unless it be its vice-president. Witnesses for the defendant residing in Boston may for the purposes of this motion be disregarded. But the defendant has two witnesses residing in Rensselaer county. The plaintiff names twenty witnesses all residing in counties other than Ontario. But even if they were residents of the latter county this order cannot be sustained. By nineteen of these witnesses the plaintiff expects to prove the quantity and quality of the grapes and that they were in good condition when loaded in the cars. The defendant has by stipulation admitted all the facts to which any of these nineteen witnesses can testify. The stipulation covers the quantity as claimed by plaintiff and states that the property was of "good stock" and "in good condition when so delivered and placed in said car" and that they were "properly packed." Comparison of this stipulation with the plaintiff's affidavits shows convincingly that the plaintiff can gain no advantage by the production in court of any of these nineteen witnesses. There is a clear distinction between a stipulation admitting that witnesses will testify to certain facts and a stipulation admitting the facts themselves to which the witnesses will testify. ( Ingal v. Stoddard, 35 App. Div. 539.) The present stipulation is of the latter nature. It states the facts as broadly as the plaintiff claims to be able to prove them. The only remaining witnesses of the plaintiff are its assignor, Mr. Porter, who resides in Seneca county, and possibly its vice-president. If we disregard the two witnesses of the defendant residing in Rensselaer county because they are in the employ of the defendant, the fact still remains that the plaintiff has no witness residing in Ontario county, unless it be its vice-president who must be disregarded if the employees of the defendant residing in Rensselaer county are disregarded. The action was properly pending in the latter county and the burden, therefore, rested on the plaintiff to establish the propriety of changing the trial to another county, which burden the plaintiff has unsuccessfully carried.
The order should be reversed on the law and facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concur.
Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.