Belden v. Schapiro

138 A.D. 669, 123 N.Y.S. 53, 1910 N.Y. App. Div. LEXIS 1611

Opinion

Kellogg, J.:

The Silver Hat Company, a Connecticut corporation, was transacting business in the city of New York,-and there sold and delivered to the defendants merchandise for the purchase price of which recovery is sought. !

The answer is breach of warranty, and that the goods were unmarketable, and the contract was changed by a new agreement; that the corporation was transacting business in the State of New York in violation of the statutes of the State. All of the witnesses reside in or about.the city of New York. The cause of action was assigned to the plaintiff evidently for the convenience of the hat company, which is apparently the real party in interest. The causé of action should be tried in the county where it arose and where the witnesses are. There is no. reason -why the trial should be had in Saratoga county, except that the hat company or its. attorneys have selected an assignee who.lives in that county. The bond required by the order does not justify the retention of the action in1 Saratoga county, and a reimbursement to the defendants does not avoid the question that the ends of justice and the convenience of witnesses require that the trial should take place where the cause .of action arose and the witnesses reside.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and, the motion granted, with ten dollars costs to abide the event.

All concurred.

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