Opinion
October 21, 1910.
Samuel F. Moran, for the appellant.
Mark W. Norman, for the respondent.
Present — INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN, CLARKE and SCOTT, JJ.
Defendant appeals from an order denying its motion to change the place of trial from New York county to Cattaraugus county.
The action is for the price of an electric automobile omnibus sold by plaintiff to defendant. The defense is that the omnibus did not comply with the warranty upon which it was sold, and that defendant consequently refused to accept it. Each party names about a dozen witnesses who are alleged to be necessary and material. All of them appear to be in the employ of one or the other of the parties. The contract was made in Olean, Cattarugus county; the omnibus was tested there, and it still remains there. In so far as concerns the inconvenience of procuring witnesses to attend upon the trial the parties stand upon a substantially equal footing. Wherever the cause is tried one of the parties must be put to inconvenience and expense.
Under such circumstances, it is the general rule that the place where the contract was made, and where the subject-matter of the action is to be found, will determine the place of trial.
The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to change the place of trial granted.
Order reversed, with ten dollars costs and disbursements, and motion granted.