
    Isaac M. Hays and Others, Composing the Firm of Hays, Levi & Company, Appellants, v. Faatz Reynolds Felting Company, Respondent.
    First Department,
    April 20, 1906.
    Trial— change of place of trial for convenience of witnesses — witnesses not employees preferred.
    In an action for a breach of warranty on the sale of goods where the plaintiffs reside in the county where the contract was made and executed, the place of trial should not be changed to another county where the defendant has thirteen witnesses, all employees, while the plaintiff has sixteen necessary witnesses, six of whom are not employees.
    The convenience of witnesses not employees will be given greater consideration than that of those who are employees.
    Moreover, the burden is on the plaintiffs to prove their case, and, on their failure to do so, the defendant’s witnesses will not be necessary.
    Appeal by the plaintiffs, Isaac M. Hays and others, composing the firm of Hays, Levi & Co., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 6th day of March, 1906, changing the place of trial of the action from the county of Hew York to the county of Broome.
    
      Manfred W. Ehrich, for the appellants.
    
      Gerard Roberts, for the respondent.
   Ingraham, J.:

The plaintiffs reside in the city of New York and are engaged in business there. The defendant is a corporation with ail office for the transaction of business in the. city of New York. A contract was made in the city of New York between the plaintiffs- and the defendant, by which the defendant agreed to sell and the plaintiffs to buy certain goods which where subsequently delivered by the defendant to the plaintiffs in the city of New York. The plaintiffs claim that there was a breach of warranty by which they sustained damage. After issue was joined, the defendant moved to change the place of trial to B roo trie county upon an affidavit which stated that it had thirteen witnesses to prove its defense in the action. All these witnesses appeared to be employees of the defendant corporation and resided in Broome county. In’ opposition to the- motion the plaintiffs submitted an affidavit which alleged that they-had sixteen witnesses, six of whom were not employees of the plaintiffs. The plaintiffs thus show a greater number of witnesses than the defendant, and it would appear from the statement of what these witnesses áre expected to testify to, that, the plaintiffs’ witnesses are as material as the defendant’s. The contract was made in the city of Hew York. The transaction took place in the city of' Hew York, and this fact is to be considered and will have a controlling influence in determining, the place of trial. (General Rules of Practice, rule 48 ; Church v. Swigert, 99 App. Div. 273 ; Jacobs v. Davis, 65 id. 144.)

In determining a question of this kind, when a motion to change the place of trial is based upon the convenience of witnesses, the convenience Of those witnesses in the employ of a party to the action is not generally given the same consideration as is given to witnesses who are not in his employ and whose attendance a party must procure to sustain his cause of action or defense. We must also consider, the fact that -the burden of proof is upon the plaintiffs. The plaintiffs are bound to prove that the goods, delivered were not according to the contract, and if the plaintiffs fail in this respect, testimony of the defendant’s witnesses will not be necessary. In every aspect of this case, it would seem that the defendant failed to present to .the- court facts which sustained the finding that the convenience of the witnesses wlio will be necessary on the trial required that the place of trial be changed, and under these circumstances I think the learned court below was not justified in changing the place of trial

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

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