Shapiro v. Klar , 120 N.Y.S. 627 ( 1909 )

Smith, P. J.:

- At the time this cause of action arose the plaintiffs were residents ' of Hew York county; the defendants of Kings county. The cause of action is for goods sold in Hew York county to one Tobias Schwartz, who as contractor was repairing premises belonging to the defendants in Hew York county. It is alleged that by reason of differences between the plaintiffs and said Schwartz the plaintiffs refused to deliver the goods necessary to complete, the said repairs until the defendants promised and agreed to pay for such material. Upon this promise the action is based. The answer of the defendants contains a general denial, a plea of payment and the plea of the Statute of Frauds. At the Special Term the motion was determined upon the defendants’ affidavits only. From those it appears not only that the cause of action arose wholly in Hew York county, but that all the witnesses reside either in Hew York county or Kings,- except possibly one of the plaintiffs, who now resides and has resided for a short time in Schenectady county. ' Under these circumstances we tí link the place of trial should have been changed either to New York or Kings county-.

This order was made upon an order to show cause served upon the plaintiffs upon the 8th day of September,-'.and returnable at a "Special. Term upon the 11th'day of September, 1909. The plaintiffs asked further time to enable them to present affidavits, but the motion. Was decided in their favor without their affidavits-.. This order should be reversed, with ten dollars costs and disbursements, and the motion remitted to Special Term, where the plaim tiffs can have opportunity'to present counter-affidavits if they should be so advised.

All concurred.-

Order reversed, with ten dollars costs and disbursements, and motion remitted to Special Term as per opinion.