
    In the Matter of the Application of The J. F. Pease Furnace Co.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Contract—Evidence.
    In an action for breach of a contract to furnish a heater for plaintiff's, house the question is as to the fitness and capacity of the one rejected by him as insufficient, and evidence to show that similar heaters had proved amply sufficient to heat buildings as large as his is inadmissible.
    
      2. Same—Venue.
    Where the contract to furnish such heater was made in New York city, and the heater was to be used in that vicinity, the plaintiff should not be-required to take his witnesses to a place 300 miles distant to secure redress for a breach of the contract.
    Appeal from order denying motion to transfer the action from the city court of New York to this court, for the purpose of changing the venue to the county of Onondaga.
    The action was brought by Michael W. Devine against the J. F. Pease Furnace Co. to recover for breach of a contract to furnish a heater for his residence in Elizabeth, N. J.
    
      Brunnemer & Bennett, for app’lt; Martin & Smith, for resp’t.
   Brady, J.

The contract for a breach of which this action was-brought was made in this city by the plaintiff with the defendant’s general agent and at its branch office here. The heater which was to be furnished to the plaintiff was to be used ip the city of Elizabeth, N. J., which may be said to be one of the suburbs of the city of New York, the distance from the latter city is so short.

The contract having been thus made, and the heater thus located at Elizabeth, the witnesses as to its fitness are naturally persons connected with the two cities named, and some of the witnesses thought to be necessary for the defense, presumably under the circumstances disclosed, are not so. That of Peters, Hyde, Neil, Blair, Hood and Creelman are to show that heaters similar to the one to be furnished the plaintiff have proven amply sufficient to heat buildings as large as plaintiff’s, if properly managed.

This evidence does not seem to be admissible. The question is not what other heaters have done, but what the one in question has done. Indeed, it might be admitted that other and similar heaters have been successful, but the question would still be as to the fitness and capacity of the one rejected by the plaintiff. Besides that, it must be said that if any witnesses in the employment of the defendant are necessary, the defendant should be required to bring them here, the contract having been made here and the heater being a short distance from the city, and more accessible, therefore, for inspection. The removal of the action from the city court is, however, discretionary, Code, § 319, and we have not discovered in the record any evidence of the abuse of the discretion conferred by the statute.

Indeed, some reasons have been given to show that the plaintiff ought not to be required to take his witnesses from another state to a place three hundred miles distant to secure redress for a breach of contract made here, and to be wholly performed in a place within a comparatively short distance from this city.

The order for these reasons should be affirmed, with ten dollars costs and disbursements. Ordered

Van Brunt, P. J., and Daniels, J., concur..  