Larkin v. Sheldon

59 Misc. 406, 109 N.Y.S. 1105

• Court: New York Supreme Court
• Decided: May 15, 1908
• Status: Published

Opinion

Woodward, J.

The defendant moves this court for a change of place of trial, on the ground of the convenience of witnesses. The plaintiff bought a polled Jersey bull of the defendant, paying $100 for the same. The defendant lives at Oneonta, Otsego county. The plaintiff brings this action to recover the amount paid for the bull, together with expenses, on the ground that the defendant warranted the bull to be sound and free from disease, so that he would be' admitted into the Dominion of Canada, and that the bull could not stand the test, and was, therefore, of no value to the plaintiff, who desired the bull for breeding purposes upon his farm in Ganada. This motion is made for a change of place of trial upon the ground of the convenience of witnesses ; and our attention is called to the fact that there is an equal division in the number of witnesses residing in this State, and that, under such circumstances, the courts have permitted a change of the place of trial to the county where the transaction occurred. But we are of opinion that this is not a hard and fast rule, particularly as the statute provides for a change of the place of trial “where the convenience of witnesses, and the ends of justice, will be promoted by the change.” The court is to inquire, not alone as to the convenience of witnesses, but whether the “ ends of justice will be promoted by the change.”

In the case now before us the bull was purchased in Oneonta; it was there that the warranty was made, if at all; but the point where it was to be determined whether the bull would pass muster and be admitted to the Dominion of Canada was at Niagara Falls, Ontario; and, if the plaintiff’s theory of the case is true, and there was a warranty, the transaction was not closed until the bull had passed over the boundary line into the Dominion of Canada, with the consent of the authorities. It is true that the number of witnesses residing in this State is equally divided, but the plaintiff’s witness Slingerland, who acted as plaintiff’s agent in the transaction and who is, therefore, his principal witness, while a resident of the Dominion of Canada, about thirty miles from the city of Buffalo, is a witness whose convenience is quite as important as that of any of the defendant’s witnesses, so far as we are able to discover. The reason for the rule of disregarding foreign witnesses in matters of this kind, that, being without the jurisdiction of the court, they may not be compelled to attend, and their evidence may have to be taken by commission (Bowles v. Borne, Watertown & Ogdensburg B. B. Co., 38 Hun, 507, 509), has no relation to this situation, where the witness, in the nature of the case, being in the employ of the plaintiff, and his agent in the transaction, will necessarily be present. Moreover, if the plaintiff’s version is true, and the defendant agreed that the animal should be able to pass the inspectors at the international boundary, he ought not to be permitted by a change of place of trial to discommode the witnesses of the plaintiff, even though they reside outside of the State. We discover in this motion nothing to indicate that the convenience of the greater number of witnesses who are fairly entitled to consideration will he advanced, nor that the “ ends of justice will be promoted ” by adding to the trouble and expense of the plaintiff in establishing his cause of action. The defendant, if he made the warranty that is claimed, in effect stipulated that the question should be determined by the inspectors at Miagara Falls, Ontario, thus making these inspectors necessary witnesses, and it would he unjust to embarrass the plaintiff by compelling him to take these witnesses, public officials, into an interior county for trial.

The motion for a change of the place of trial should be denied, with costs.

Motion denied, with costs.