
    NATIONAL CONTRACTING CO. v. HUDSON RIVER WATER-POWER CO.
    (Supreme Court, Appellate Division, First Department.
    July 9, 1901.)
    Actions—Change of Venue—Convenience of Witnesses.
    Where, on a motion for change of venue for convenience of witnesses, defendant’s affidavits alleged that 25 witnesses residing in another county were necessary to prove certain facts of defense, but did not state what facts any witness could testify to, and plaintiff alleged that 44 persons residing in the county where the action was pending were necessary witnesses, the order denying the motion will not be reversed.
    Appeal from special term, New York county.
    Action by the National Contracting Company against the Hudson River Water-Power Company. From an order denying defendant’s motion for change of the place of trial, it appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and INGRAHAM, JJ.
    Richard L. Hand, for appellant.
    L. Laflin Kellogg, for respondent.
   INGRAHAM, J.

The action was brought to recover for a breach of a contract by the defendant whereby the plaintiff was to construct a masonry dam across the Hudson river in the county of Saratoga. The answer admits the making of the contract, denies-the other allegations of the complaint, alleges a breach by the plaintiff, and sets up a counterclaim for damages sustained by the defendant in consequence of the plaintiff’s failure to prosecute said work as required by the contract. After the case was at issue the defendant made a motion to change the place of trial, for the convenience of witnesses, from Hew York to Saratoga county. The plaintiff’s affidavit upon which this motion was made alleges that 84 persons are material and necessary witnesses for the defendant on the trial of the action; 25 residing in Saratoga county, and the other 9 residing in adjoining counties. There is no allegation that these witnesses would testify as to any facts that would be material upon the trial, the allegation being that each person named, is a material witness to prove certain specified facts; but nothing is alleged to show that the witnesses can testify to the facts specified. To justify the court in granting the application, it must appear that the persons named can testify to facts which will be material upon the trial. In" opposition to this motion there were submitted on-behalf of the plaintiff affidavits alleging the 44 persons residing in the city and county of Hew York are material and necessary witnesses for the plaintiff, and that there are a number of other persons, residents of adjoining counties, who are also material and necessary. We have, examined the affidavits, and, while there is considerable doubt as to whether many of the persons specified therein could testify as to any facts which would be material upon the trial, we do not think that the defendant has made out a case which would justify us in reversing the action of the special term, or in determining that the convenience of witnesses alone requires a change df venue in this action. The contract was made in the city of Hew York. It was to be executed in Saratoga county. The main question is to determine whether the failure of the plaintiff to complete the contract was caused by the plaintiff or the defendant; the plaintiff’s place of business being in the city of Hew York, and the defendant’s place of business being in- the county of Saratoga. As is natural, a majority of the persons alleged to-be material for the plaintiff reside in Hew York or its vicinity, while a majority of those to be called for the defendant are residents of Saratoga county or that vicinity; but the burden of proof is upon the plaintiff to establish a breach of the contract by the defendant.. It is true, the contract was to- be performed in Saratoga county,, and that fact is always taken into consideration in determining motions of this character; but, without analyzing these affidavits, we are not satisfied that upon the facts alleged there is a decided majority of those alleged to be material witnesses who reside in Saratoga county or in that neighborhood, so that the convenience of the witnesses that will actually be called justifies the court in changing the place of trial.

The order appealed from should be affirmed, with $10 costs and disbursements. All concur.  