
    Belding v. Ladd et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    Venue in Civil Cases—Change to Place of Contract.
    Where, in an action for the alleged breach of warranty in the sale of horses, brought in a county distant from that where the sale took place, it appears that defendants have a greater number of material and necessary witnesses than plaintiff, and that they reside at the place where the horses were purchased, and where they had been handled and observed for more than a year before the sale, it is improper to refuse defendants’ motion for a change of venue to that place, though the court, as a condition of the denial, exacts a stipulation that defendants might examine their witnesses at such place before a referee.
    Appeal from special term, New York county.
    Action by Milo M. Belding against Eugene H. Ladd and William E. Small-man upon an alleged breach of warranty in the sale of horses at Malone, Franklin county. Defendants moved for a change of venue from New York county to Franklin county. Defendant Smallman, in bis moving affidavit, asserts that he requires twenty-seven witnesses, all residing at ornear Malone, Franklin county, and the affidavits of four of these witnesses were presented. Plaintiff resides in New York city, and shows by his affidavit that he has six witnesses, besides himself, residing in the city of New York or vicinity, and the affidavits of whom are presented. The motion was denied at special term, and defendants appeal.
    Argued before Van Brtint, P. J., and Daniels and Barrett, JJ.
    
      Bellas cfi Munsill, for appellants. Putney <& Bishop, for respondent.
   Barrett, J.

The motion to change the place of trial should, upon well-settled principles, have been granted. Where the number of material and necessary witnesses on each side is substantially equal, the place where the transaction occurred ought generally to control. Peck v. Parker, 15 Wkly. Dig. 142; Whitall v. Moshier, 7 N. Y. St. Rep. 390. In the present case, the affidavits clearly show that the defendants have a far greater number of witnesses in Franklin county than the plaintiff has in New York. Upon examining these afiidavits carefully, in connection with the pleadings, we are satisfied that, while some of the witnesses named in the moving papers might have been omitted, very many of them are unquestionably material and necessary. Indeed, of those who, upon a critical analysis of the papers, appear to be strictly material and.necessary, the preponderance is plainly with the defendants. ' It is eminently proper that this case should be tried where the horses, which form the subject of the action, were purchased, and where they had been handled and observed for more than a year prior to the sale. The plaintiff’s witnesses speak of a vice (called “cribbing”) observed since the sale, which vice they claim must have existed prior thereto. The defendants’ witnesses speak of the entire absence of that vice prior to the sale, and they claim to so speak from actual and constant observation. It would be entirely unfair to compel the defendants, who sold their horses (and made whatever contract of guaranty there was) in Franklin county, to come down to New York, with a large number of witnesses, to rebut inferences deducible from observation since the sale by proof of the actual condition of the horses at and prior to the time of the sale. One side or the other must undoubtedly be inconvenienced ; but, on the proofs before us as to the number of necessary and material witnesses^ the place where the transaction occurred should certainly turn the scale. The motion should therefore have been granted. In granting it, the court might properly have imposed reasonable conditions, making the change as little burdensome to the plaintiff as possible. Instead of that, the court denied the motion, exacting from the plaintiff, as a condition of the denial, a stipulation to permit the defendants to examine their witnesses in Franklin county before a referee. Thus the j ust order of things was reversed; and the defendants, who were entitled to produce their witnesses before a jury in Franklin county, were simply enabled to read their depositions before a jury in New York. As the defendants are unwilling to risk a trial upon paper testimony, they are thus compelled to leave the locality of the bargain, and, at great inconvenience and expense, to bring all their witnesses to this city. In other words, they are deprived of the change of venue which the facts entitle them to, upon the plaintiff’s agreeing, in substance, to let them have a jury trial in New York, shorn of one of its most important and valuable features. We think this condition did not help the matter, and that the denial of the motion was not justified by its imposition. The order appealed from should therefore be reversed, with $10 costs and the disbursements of the appeal; and the motion should be granted, with $10 costs to abide the event. All concur.  