
    Edward M. Peck, Appellant, v. The Will & Baumer Company, Respondent.
    Order reversed, with ten dollars costs and disbursements.—Appeal from an order of the Special Term, entered in the office of the clerk of Queens county on the 6th day of May, 1902, changing the place of trial- of the action from the county of Queens to the county of Onondaga.
   Per Curiam:

We think that the defendant did nob show that the facts as to which its proposed witnesses could testify would be material upon the trial. The complaint is for a breach of contract of sale for certain oil in that but part thereof was delivered. The answer is general denial.' The defendant has succeeded iu changing the place of trial on the ground of the convenience of twenty-one witnesses, all in its employ. The defendant states that fifteen of them will testify to the quality of the ingredients of the oil, or of the oil which was furnished, and that six of them can testify to conversations had as bo the alleged contract for the sale of said oil and with reference to the sale, made in Europe, in regard to the same, at variance with the claims set forth in the complaint. The learned counsel for the respondent in his brief discusses the merits of this appeal as if the question to be determined were whether oil furnished in full performance of the contract was up to the standard required by the contract, and states “upon the argument of the motion at Special Term it appeared before the court that the defendant had in fact furnished the requisite number of barrels to complete the contract.” But the moving affidavits, to which we are confined, do not show anything of that kind. The answer is a general denial, and the defendant moves upon an affidavit which nowhere states that it proposes to give evidence or to attempt to give evidence that it performed the contract by furnishing or by tendering the quantity and quality of oil required thereby. If the facts stated in the counsel’s points were embodied in his client’s affidavit we should not hesitate to affirm the order, but as we are limited by the affidavit we seek therein in vain for any facts which justify the change of venue, and the defendant must prevail by the strength of its own affidavit and not by the technical defects of that read in answer. All concurred.  