Opinion
May 31, 1912.
John L. Crandell [ John Edward Ruston with him on the brief], for the appellant.
Thomas P. Peters, for the respondent.
This appeal is from an order denying defendant's motion to change, for the convenience of witnesses, the place of trial from New York county to Columbia county.
The action is brought to recover damages for the alleged breach of a contract to do rock drilling for the plaintiff in Columbia county. The damages claimed are $6,000, for which judgment is demanded. The answer admits the making of the contract, denies that the plaintiff performed on its part, and as a separate defense and by way of counterclaim alleges that the defendant has sustained damages to the amount of $500 by reason of the plaintiff's failure to keep the pit or excavation where the drilling was to be done dry and free from water, which, it is claimed, the plaintiff had agreed to do.
The contract was to be performed in Columbia county. Substantially all the matters involved in, or connected with, the plaintiff's alleged cause of action, as well as the defendant's alleged counterclaim, arose in that county, where the defendant resides.
It is obvious from the papers presented that upon the trial of the issues raised most of the witnesses must be obtained in that county where they reside. Under such circumstances the general rule should be applied, which is, that in transitory actions the issues should be tried in the county where the transactions involved in the controversy took place, unless the greater number of witnesses live in another county. ( Spanedda v. Murphy, 144 App. Div. 58; Fluckiger v. Haber, Id. 65.)
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., CLARKE, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.