Neiman v. Gardner

Full title: SAMUEL NEIMAN and LEO W. COHN, Respondents, v . BARNEY GARDNER, Appellant

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

Date published: Jun 2, 1911

145 App. Div. 197 (N.Y. App. Div. 1911)

129 N.Y.S. 913

Opinion

June 2, 1911.

James O. Sebring, for the appellant.

William J. Carey, for the respondents.

McLAUGHLIN, J.:

The plaintiffs are engaged in business in the city of New York and the defendant at Hammondsport, Steuben county, N.Y. On the 19th of May, 1909, one of the plaintiffs went to the defendant's place of business and obtained from him the following order (except the numbers, sizes and prices) for children's clothing:

"Order No. May 19/1909. "M. "Ship to B. Gardner, "At HAMMONDSPORT, "N Y "How Ship Erie. When Oct. 1st. "Terms Nov. 1st, 7/10, 5/30, 4/60."

Action was brought, the venue being laid in the county of New York, to recover the price alleged to have been agreed upon at the time the order was given. The answer admits the giving of the order and alleges that the terms of the same were not complied with by the plaintiffs; that they neglected and refused to deliver the clothing on or before the 1st of October, 1909, and made no attempt to deliver the same until after October fifteenth of that year; and that the same were never, in fact, delivered to defendant and that he has never received or accepted the same. After issue had been joined the defendant, for the convenience of witnesses, moved to change the place of trial from the county of New York to the county of Steuben. The motion was denied and he appeals.

The contract was made in Steuben county and the goods were, according to the order, to be there delivered. The principal issues to be tried, in fact substantially the only issues, are: (1) Whether the goods were ever delivered to the defendant at all; and (2) if so, whether at the time called for by the order. Upon these issues it is perfectly obvious the witnesses must be largely obtained in Steuben county. This, taken in connection with the fact that the transaction arose in that county, was sufficient to require that the trial should be there had. ( Brody v. Weed Co., 137 App. Div. 754; Shaff v. Rosenberg, 116 id. 366; Denzer v. Grewen, 133 id. 706.)

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.

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