
    The J. P. Lewis Company, Appellant, v. The Phœnix Cap Company, Respondent.
    Fourth Department,
    October 17, 1906.
    Venue—convenience of witnesses — change of venue denied-—when conditions not proper.
    In an application to change the place of trial for the convenience of witnesses, the place where the transaction arose is a circumstance to be taken into consideration and is sometimes controlling, but it must yield when the convenience of witnesses is paramount.
    When in an action for the value of goods sold and delivered the plaintiff shows four necessary witnesses whose convenience will be subserved by retaining the place of the trial, while the defendant, making a general denial, has no wit-
    
      nesses, the place of trial will not be changed, although the goods were sold and delivered in the defendant's county.
    When the defendant claims to have purchased the goods of the plaintiff’s agent in New York and to have settled with such agent, but the record sliow^ that the agent denies the settlement, the place of trial will not be changed to New York.
    When it is clear that the convenience of the plaintiff’s witnesses is paramount, the court has no power to condition the retention of the place of trial as laid by the plaintiff on a stipulation by .the plaintiff to refer the controversy.
    Appeal by the plaintiff, The J. P. Lewis Company, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Lewis on the 18th day of April, 1906, granting the defendant’s motion to change the place of trial of the action from the county of Lewis to the county of New York.
    
      W. B. Van Allen, for the appellant.
    
      George H. Cobb, for the respondent.
   Spring, J.:

The action is to recover for goods sold and delivered 'by the plaintiff, a domestic corporation in Lewis county, to the defendant, a like corporation doing business in. New York city. The answer is a general denial, so that by the pleadings the only issue between the parties is the sale and delivery of the-goods. On this issue the defendant really has no witnesses whatever to disprove the sale of the goods, or that the price was for the sum alleged in .the complaint, or the actual delivery to it.

On behalf of the plaintiff, it appears that it can establish the sale and shipment of the goods by four witnesses.

The ground of the application is the convenience of the witnesses, and upon the only issue tendered by the pleadings the plaintiff has four, while the defendant, upon a fair construction of what is expected to be proved by it, seems to be without witnesses.

The defendant lays much stress upon the fact that the transaction arose in New York city. In a, close case that fact is potential and this court has always so regarded it. But it must be borne in mind that the application is for the convenience of witnesses and the place where the transaction arose is a circumstance to be “ taken into consideration ” (Gen. Rules Pr. rule 48) in the disposition of the motion ; although, as already suggested, it is a very significant and often the controlling circumstance. Where-, however, the affidavits show overwhelmingly that the convenience of'the witnesses will he subserved by disregarding that provision its importance as a circumstance will be overborne.

But when we coiné to look at what the defendant evidently considers its real defense, it is in a much more unfortunate plight. Its claim is, and the proof shows, that these goods were purchased by it of the Hew York Box Board and Paper Company, a brokerage firm in Hew York which made the sale on behalf of the plaintiff. The sales order shows that the sale was made .by this intermediary representing the plaintiff, and that the goods were shipped directly to the defendant, and they were to be charged 'to and paid for by it. The defendant, however, claims that it pur- ■ chased the goods of the box board company and that the account ” - with it lias been adjusted,” although no such defense is contained in the answer. The defendant expects to prove the fact of this adjust-. ment by Mr. Butler, the president of that company, but the record' contains the affidavit of that officer denying that any such adjustment was made, and further states that company had no interest in the sale except to the.extent of the commissions which the plaintiff agreed to pay it for making-the sale. In view of these affidavits we think the defendant failed to make a ease justifying the change of the place of trial. >

There is one other matter which- it may not be inappropriate to refer to. The order in the present ease grants the motion unless the plaintiff consents to a reference and with authority in the referee “ to take evidence in the counties .of Lewis and Mew York.” The action is not one where the court may order a compulsory reference. The plaintiff is entitled to have the issues disposed of by a jury. It cannot be compelled to forego this right and to consent to a reference as a condition of retaining the place of trial in Lewis county. (L'Amoureux v. Erie Railroad co., 62 App. Div. 505.)

The condition engrafted in the order is unwarranted and savors of an attempt to compel the plaintiff to assent to a reference of the action or be compelled to try his case in Eew York county, even though the affidavits show the change Ought not to be made.

The order should be reversed, with ten dollars costs and disbursements of this appeal, and the motion denied, with ten dollars • costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  