
    Mills & Gibb (Incorporated), Respondent, v. John H. Starin and Alfred De Graff, Appellants.
    First Department,
    May 10, 1907.
    •Practice — venue — proper county where foreign corporation sues resident — convenience of witnesses.
    When a foreign corporation doing business in this State sues resident defendant® in an action upon contract not specified in sections 982 or 983 of the Code of . Civil Procedure, the trial should be laid in the county in which one of the: defendants resides.
    The residence of a citizen of this State is not affected by the place of his business interests or official position.
    When Such defendant moves to change the venue to the county of his residence, the court is without authority to consider the convenience of witnesses at the» instance of the plaintiff. ■
    ■ It seems, that a change of venue for the convenience of witnesses will only be-considered when the venue has been laid in or changed to the proper county„
    AlPpeal by the defendants, John H. Starin and another, from am order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of' Mew York; on the 15th day of March, 1907, denying the defendants’ motion to» eliange the place of trial from the county of Mew York to the: ' county of Montgomery.
    
      George If. AWot, for the appellants. _ •
    
      Eugene Lamb Richards, Jr. [Rutherford B. Meyer with him. on the briefly for the respondent.
   Laughlin, J.:

The action is brought to recover damages for breaches of contracts to sell and deliver goods, wares and merchandise. The .. defendants in their answer admit the incorporation of the plaintiff and that the defendants are copartners, but deny the other material allegations of the complaint and. allege that the contracts were made without their authority. The plaintiff is a foreign corpora- • tion, organized under- the laws of the State of New Jersey. The defendants both reside in the county of Montgomery and resided ' there at the, time the action was commenced. The place of trial designated in the summons is the county of New York. Before serving their answer the defendants duly demanded that the place of trial be. changed to the proper county, namely, tó the county of Montgomery. The plaintiff, in opposition to the motion, presented an affidavit showing that its sole place of business in the State of New York is in the county of New York; that the contracts upon which-the action was based were made and were to be performed in the county of New York; that the defendant Statin has an office for the transaction of business and transacts.business in the ■ county of New York, and is a member of the rapid transit com-.. mission of the city of New York, and spends “practically all of his time” in the county of New York. The affidavit also tends to show that the convenience of witnesses requires that the issues be tried in the county of New York, and sets forth, the names of the witnesses whom, the plaintiff proposes to call and facts tending to show that they can give material testimony in its behalf. The defendants did not. present any affidavit in answer to that pre-' sented by the plaintiff tending tó show that the convenience of .witnesses requires that the trial of the issues .be had in the county óf New York. It does not appear that the affidavit presented by the plaintiff was served upon the defendants, or that the plaintiff made a counter motion to have the trial of the issues retained in the county of New York; nor does it appéar that the defendants were afforded an opportunity to meet the plaintiff’s affidavit, or that they have in any manner waived their right to have the motion to change the place of trial from the proper county to the county of Mew York for the convenience of witnesses heard in the county of Montgomery.

The'plaintiff being a foreign corporation and the action being one ' not specified in sections 982 or 983 of the Code of Civil Procedure, the proper place of trial is a county in which one of the defendants reside. (Code Civ. Proc. § 984; Shepard & Morse Lumber Co. v. Burleigh, 27 App. Div. 99.) The permanent, residence of the defendant Starin, in the county of Montgomery, is not affected by his business interests, official position and temporary sojourn in the city of Mew York: (People v. Platt, 117 N. Y. 166 ; Washington v. Thomas, 103 App. Div. 423; Laws of 1891, chap. 4, § 1, as a-md. by Laws of 1906, chap. 472, § 1.) The defendants were, therefore, entitled, as matter of right, to have the place of trial changed to the county of Montgomery, and on the motion for an order to that effect the court was without authority to consider, at the instance of the plaintiff, the convenience of witnesses. (Sylvester v. Lewis, 55 App. Div. 470; Harmon v. Van Ness, 56 id. 160; North Shore Industrial Co. v. Randall, 108 id. 232 ; Acker v. Leland, 96 N. Y. 383; Veeder v. Baker, 83 id. 156.) ■ The county of Montgomery being the proper place for the trial of the issues, the action should liaye been brought in that county, and not having been so brought, should now be changed to that county.' If the plaintiff had brought the action in the proper county it would have been: at liberty thereafter to have moved to change the place of trial to tire county of Mew.-York for the convenience of witnesses, and after the place of trial is changed to the county of Montgomery, the plaintiff will still be at liberty to move for that relief, and the defendants will then have an opportunity of meeting the motion in the judicial district , in which the action should have been brought. (Gorman v. South Boston Iron Co., 32 Hun, 71; Herbert v. Griffith, 2 App. Div. 566; Phillips v. Tietjen, 108 id. 11; Acker v. Leland, supra; Veeder v. Baker, supra.)

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, -and motion granted, with ten dollars costs.  