Opinion
April 7, 1911.
George M. Palmer, for the appellants.
Samuel F. Frank, for the respondent.
Action to recover damages for breach of a contract — the venue being laid in the county of New York. The complaint alleges that in May, 1910, the defendants promised and agreed that in consideration of the plaintiff's paying the transportation and expenses of twenty-five laborers, and as many more as might be needed during the course of certain work which the defendants had contracted to do in Schoharie county, N.Y., and also paying to the defendants the sum of $150 for the erection of a certain building, they would grant to the plaintiff the exclusive right to maintain the building upon their property for the purpose of boarding and lodging laborers employed by the defendants, and selling them such necessaries as they might require during the term of the agreement; that plaintiff, relying upon the agreement, furnished 130 laborers and paid out some $400 for their transportation; that he also paid the stipulated price for the erection of the building and was at all times ready and willing to carry out the agreement upon his part, but that the defendants wholly failed to perform the agreement; that they forcibly removed him from the building and caused him to leave the locality where the work referred to was being carried on, by reason of which he has sustained damage to the amount of $5,000.
The answer admits that the defendants made a contract with the plaintiff, but denies that they made the one alleged; and then alleges, affirmatively, that the plaintiff did not keep his contract and that the men whom he furnished struck, refused to work, and prevented others from working, by reason of which fact riots occurred; that one of the men furnished shot one of the defendants in the hand, and one of them shot and killed a man by the name of Wilty; that by reason of their insubordination defendants compelled them to leave; and that the plaintiff, of his own volition, went away and voluntarily surrendered the contract which he had with the defendants.
After issue had been joined the defendants moved to change the place of trial from the county of New York to the county of Schoharie. The motion was denied and they appeal.
The contract was made in the county of Schoharie; it was there to be performed; any failure to carry out its terms took place in that county, where both of the defendants reside; and it is obvious that most of the witnesses must necessarily be obtained in that locality. This being so, I think the trial should take place in that county. The general rule is that in transitory actions, the action should be tried in the county where the transactions involved in the controversy took place, unless a large preponderance of the witnesses live in another county. ( Jacobs v. Davis, 65 App. Div. 144; Lutfy v. Sullivan, 119 id. 506; Harrison v. Holahan, 122 id. 740; Studebaker Bros. Co. v. W.N.Y. P. Traction Co., 140 id. 308.)
It is suggested that a fair trial cannot be had in Schoharie county by reason of the prejudice against the plaintiff. The facts set out in the record do not sustain such contention, nor do I think there is any basis for it.
The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial from the county of New York to the county of Schoharie granted, with ten dollars costs.
INGRAHAM, P.J., SCOTT, MILLER and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.