Mills & Gibb (Inc.) v. Starin , 104 N.Y.S. 230 ( 1907 )

Laughlin, J.:

The action is brought to recover damages for breaches of contracts to sell and deliver goods, wares and merchandise. The .. defendants in their answer admit the incorporation of the plaintiff and that the defendants are copartners, but deny the other material allegations of the complaint and. allege that the contracts were made without their authority. The plaintiff is a foreign corpora- • tion, organized under- the laws of the State of New Jersey. The defendants both reside in the county of Montgomery and resided ' there at the, time the action was commenced. The place of trial designated in the summons is the county of New York. Before serving their answer the defendants duly demanded that the place of trial be. changed to the proper county, namely, tó the county of Montgomery. The plaintiff, in opposition to the motion, presented an affidavit showing that its sole place of business in the State of New York is in the county of New York; that the contracts upon which-the action was based were made and were to be performed in the county of New York; that the defendant Statin has an office for the transaction of business and transacts.business in the ■ county of New York, and is a member of the rapid transit com-.. mission of the city of New York, and spends “practically all of his time” in the county of New York. The affidavit also tends to show that the convenience of witnesses requires that the issues be tried in the county of New York, and sets forth, the names of the witnesses whom, the plaintiff proposes to call and facts tending to show that they can give material testimony in its behalf. The defendants did not. present any affidavit in answer to that pre-' sented by the plaintiff tending tó show that the convenience of .witnesses requires that the trial of the issues .be had in the county óf New York. It does not appear that the affidavit presented by the plaintiff was served upon the defendants, or that the plaintiff made a counter motion to have the trial of the issues retained in the county of New York; nor does it appéar that the defendants were afforded an opportunity to meet the plaintiff’s affidavit, or that they have in any manner waived their right to have the motion to change the place of trial from the proper county to the county of Mew York for the convenience of witnesses heard in the county of Montgomery.

The'plaintiff being a foreign corporation and the action being one ' not specified in sections 982 or 983 of the Code of Civil Procedure, the proper place of trial is a county in which one of the defendants reside. (Code Civ. Proc. § 984; Shepard & Morse Lumber Co. v. Burleigh, 27 App. Div. 99.) The permanent, residence of the defendant Starin, in the county of Montgomery, is not affected by his business interests, official position and temporary sojourn in the city of Mew York: (People v. Platt, 117 N. Y. 166 ; Washington v. Thomas, 103 App. Div. 423; Laws of 1891, chap. 4, § 1, as a-md. by Laws of 1906, chap. 472, § 1.) The defendants were, therefore, entitled, as matter of right, to have the place of trial changed to the county of Montgomery, and on the motion for an order to that effect the court was without authority to consider, at the instance of the plaintiff, the convenience of witnesses. (Sylvester v. Lewis, 55 App. Div. 470; Harmon v. Van Ness, 56 id. 160; North Shore Industrial Co. v. Randall, 108 id. 232 ; Acker v. Leland, 96 N. Y. 383; Veeder v. Baker, 83 id. 156.) ■ The county of Montgomery being the proper place for the trial of the issues, the action should liaye been brought in that county, and not having been so brought, should now be changed to that county.' If the plaintiff had brought the action in the proper county it would have been: at liberty thereafter to have moved to change the place of trial to tire county of Mew.-York for the convenience of witnesses, and after the place of trial is changed to the county of Montgomery, the plaintiff will still be at liberty to move for that relief, and the defendants will then have an opportunity of meeting the motion in the judicial district , in which the action should have been brought. (Gorman v. South Boston Iron Co., 32 Hun, 71; Herbert v. Griffith, 2 App. Div. 566; Phillips v. Tietjen, 108 id. 11; Acker v. Leland, supra; Veeder v. Baker, supra.)

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

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