Upjohn v. First Methodist Episcopal Society of Homer Village

156 A.D. 147, 140 N.Y.S. 1104, 1913 N.Y. App. Div. LEXIS 5204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1913
• Status: Published

Opinion

McLaughlin, J.:

The plaintiffs, as architects, bring this action to recover damages for an alleged breach of contract by which they were employed to prepare drawings and specifications for, and to superintend the erection of a church building for the defendant at Homer, Cortland county, N. Y. - One of the plaintiffs resides in the county of Westchester; the other in the county of Queens. The' defendant is a religious Corporation located at Homer, Cortland county. The plaintiffs laid the venue in the county of New York and the defendant made the necessary demand that the place of trial be changed to Cortland county as the proper county. After the demand had been served, the plaintiffs moved that the place of trial be changed from New York to Queens county. The defendant opposed the motion and asked that it be changed from New York to Cortland county, not only as the proper county, but also for ' the convenience of witnesses. Plaintiffs’ motion to change to Queens county was granted. Defendant’s motion was denied, and it appeals from both orders.

When the action was commenced the plaintiffs had the option to fix the place of trial in a county where either of them resided, or in the county where the defendant resided. It, however, did not see fit to exercise this option, but on the com trary, fixed the place of trial in the county of Hew York, where none of the parties resided. The defendant then exercised the right which it had under the statute (Code Civ. Proc. § 986) of demanding that the place of trial be changed to Cortland county. It could not thereafter be deprived of this right by changing to a county in which one of the plaintiffs resided. It was so held in Rector v. Ridgwood Ice Co. (38 Hun, 293; affd., 101 N. Y. 656) and Loretz v. Metropolitan St. R. Co. (34 App. Div. 1).

The motion to change from Hew York to Cortland county should also have been granted for the convenience of witnesses. The contract, if made at all, was made in Cortland county. The services, or the greater part of them, were there to be rendered. The plaintiffs’ cause of. action, if they have one, there arose. These facts are to be taken into consideration in fixing the place of trial. (General Eules of Practice, rule 48.) Besides, it is perfectly obvious,' from the papers used upon the motion, that the greater number of material witnesses reside in and must be obtained in that county. (Jacobson v. German-American Button Co., 124 App. Div. 251; Pinkus v. United Cloak & Suit Co., Id. 535; Schulz v. Hudson Valley R. Co., 147 id. 788. See, also, Harrison v. Holahan, 122 App. Div. 740; Jacobs v. Davis, 65 id. 144.)

The orders appealed from are reversed, with ten dollars costs and disbursements; the motion to change the place of trial from Hew York to Queens county is denied, with ten dollars costs, and the motion to change the place of trial from Hew York to the county of Cortland is granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred. •

Orders reversed, with ten dollars costs and disbursements; motion to change place of trial to Queens county denied, with ten dollars costs, and motion to change place of trial to Cortland county granted, with ten dollars costs.