72 N.Y.S. 558 | N.Y. App. Div. | 1901
The action was brought to recover the possession of certain personal property situated at Kingston, Ulster county, H. Y. The defendant moved to change the place of trial to that county on the ground of the convenience of witnesses. The affidavit submitted by one of the plaintiffs in opposition to this motion discloses the circumstances under which the plaintiffs claim a lien upon and right to possession of this property. From that affidavit it appears that the cause of action arose at Kingston; that the transactions took place there ; that the property to recover the possession of which this action was brought is located there and is there held by the defendant as trustee in bankruptcy. It seems that a firm of Marcuse & Middagh were in business in Kingston, and that on the 14th day of December, 1900, Marcuse, a member of that firm, employed the plaintiffs to sell, as auctioneers, certain personal property, consisting of their stock of clothing, which was located at Kingston, and desired the plaintiffs to make an advance to him upon such goods. The plaintiffs declined to make such an advance until they
The entire transaction thus took place at Kingston, and the principal witnesses, with the exception of the plaintiffs and the employees, who will be required to be examined upon the trial, will be those who had knowledge of the transactions there at the time the goods were shipped. I think this case should be tried at Kingston. It has become to be recognized that as a general rule in transitory actions, the case should be tried in the locality where the transactions involved in the controversy took place, unless a large preponderance of the witnesses live in a different locality. The good faith of the plaintiffs in making these advances will necessarily be inquired into upon the trial, as upon their good faith will largely depend their right "to the possession of this property. They delegated to their representatives sent to Kingston the authority to act for them in making the advances and in receiving possession of the goods. The circumstances under which the advances ■were actually made at Kingston will necessarily be an important
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to abide event.
Yak Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.