Opinion
July Term, 1901.
Order affirmed, with ten dollars costs and disbursements.
The action was brought to recover for a breach of a contract by the defendant whereby the plaintiff was to construct a masonry dam across the Hudson river in the county of Saratoga. The answer admits the making of the contract, denies the other allegations of the complaint, alleges a breach by the plaintiff, and sets up a counterclaim for damages sustained by the defendant in consequence of the plaintiff's failure to prosecute said work as required by the contract. After the case was at issue the defendant made a motion to change the place of trial for the convenience of witnesses from New York to Saratoga county. The affidavit upon which this motion was made alleges that thirty-four persons are material and necessary witnesses for the defendant on the trial of the action twenty-five residing in Saratoga county and the other nine residing in adjoining counties. There is no allegation that these witnesses would testify as to any facts that would be material upon the trial, the allegation being that each person named is a material witness to prove certain specified facts, but nothing is alleged to show that the witnesses can testify to the facts specified. To justify the court in granting the application it must appear that the persons named can testify to facts which will be material upon the trial. In opposition to this motion there was submitted on behalf of the plaintiff affidavits alleging that forty-four persons residing in the city and county of New York are material and necessary witnesses for the plaintiff, and that there is a number of other persons, residents of adjoining counties, who are also material and necessary. We have examined the affidavits, and while there is considerable doubt as to whether many of the persons specified therein could testify as to any facts which would be material upon the trial, we do not think that the defendant has made out a case which would justify us in reversing the action of the Special Term, or in determining that the convenience of witnesses alone requires a change of venue in this action. The contract was made in the city of New York. It was to be executed in Saratoga county. The main question is to determine whether the failure of the plaintiff to complete the contract was caused by the plaintiff or the defendant, the plaintiff's place of business being in the city of New York and the defendant's place of business being in the county of Saratoga. As is natural, a majority of the persons alleged to be material for the plaintiff reside in New York, or its vicinity, while a majority of those to be called for the defendant are residents of Saratoga county, or that vicinity; but the burden of proof is upon the plaintiff to establish a breach of the contract by the defendant. It is true the contract was to be performed in Saratoga county, and that fact is always taken into consideration in determining motions of this character; but without analyzing these affidavits we are not satisfied that upon the facts alleged there is a decided majority of those alleged to be material witnesses who reside in Saratoga county or in that neighborhood, so that the convenience of the witnesses that will actually be called justifies the court in changing the place of trial. The order appealed from should be affirmed, with ten dollars costs and disbursements. Van Brunt, P.J., O'Brien, McLaughlin and Hatch, JJ., concurred.