152 N.Y.S. 900 | N.Y. Sup. Ct. | 1915
This action was brought in Erie county to recover the sum of $401.80 for goods sold and delivered to the plaintiff, who conducts a retail store in the village of Ontario, Wayne county, this state. The plaintiff is a domestic corporation, having its principal place of business in the city of Buffalo,
The defendant has moved this court for an order ■changing the venue from Brie to Wayne county, on the ground that it is necessary for the convenience of witnesses, and the moving papers appear to have been drawn to bring the case within the established rules of practice in this state. Deutsch v. E. M. Upton Cold Storage Co., 146 App. Div. 588; Brosky v. Hallock, 165 id. 970, and authorities there cited.
It is urged, however, that the damages claimed are' upon a breach of warranty of quality and that the case is governed by the provisions of section 130 of the Personal Property Law, as amended by Laws of 1911, ch. -571, and that as the pleadings do not allege that the defendant, after accepting the goods involved in the counterclaim, gave notice to the seller within a reasonable time of the alleged breach of warranty, there is a failure to allege a condition
It thus clearly appears that the provisions of section 130 of the Personal Property Law are not controlling in this section, and the same observations apply to section 150 of the Personal Property Law, which undertake to determine the measure of damages in cases of this character. But it is a statutory rule to take effect on the 1st of September, 1911, and by the provisions of the act itself it does not govern in the event that the contract under which the alleged warranty was made came into existence before that time.
It seems to me highly probable that the defendant will find no need of the number of witnesses suggested in his moving papers, but if one-half of them were needed it would still show a considerable preponderance of witnesses to be accommodated, and the tendency of the courts is to permit cases to go to the rural counties for trial, where the opportunities for
The motion is granted, without costs.
Motion granted, without costs.