#### Aldine Manufacturing Company, Respondent, *v.*Duffy-McInnerney Company, Appellant.

First Department,

March 20, 1908.

Trial—change of venue—place of contract and performance.

Where, on a motion to change the venue of an action, to recover damages for breach of a building contract, it appears that the contract was to be performed in the defendant’s county, and that the greater number of witnesses necessary to prove a counterclaim for injuries caused by the plaintiff’s failure to perform reside there, as well as arbitrators appointed pursuant to a clause of the contract, the venue should be changed to said county.

*752Appeal by the defendant, the Duffy-Mclnnerney Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1907, denying the defendant’s motion to change the place of"trial of the action from the county of New York to the county of Monroe.

*BenjaminC. Pashus,*for the apjiellant.

*Chester H.*Lcme, for the respondent.

Ingraham, J.:

This action was brought to recover the damages for a breach of a contract for the performance of certain work on a building in Rochester, Monroe county, N. Y. The original contract was made between a New York corporation known as the Plymouth Interior Construction Company, á domestic corporation, and the defendant, also a domestic corporation. The complaint alleges that the Plymouth Interior Construction Company accepted said contract, entered into the performance thereof and substantially performed the same, and that there was unpaid $5,087 and that the Plymouth Interior Construction Company had- assigned its right, title and interest in and to the sums of money due thereon to the plaintiff. The answer admits that the Plymouth Construction Company performed certain work, labor and services at the agreed price of $629.04 and that the Plymouth Construction Company entered into a contract with the defendant as alleged in the complaint, and denies each and every other allegation of the complaint; and as' a defense alleges the making of the contract; that it was further agreed that the same should be completed on February 6, 1907, and that for every day’s delay the Plymouth Company should pay twenty-five . dollars per day; that the Plymouth Company failed to comply with the contract in certain particulars specified, and that thé defendant-was damaged by a failure of the Plymouth Company to comply with the contract in the sum of $4,000; further answering it was alleged that the Plymouth Company did not complete its work on February 6, 1907, and that the same was not completed until March 18,1907, and that the Plymouth Company also became liable to pay the sum of $1,000 for the delay in the completion of the work. There was *753a further defense under an agreement to arbitrate; the decision of the arbitrators that there should be an allowance made to the defendant of $3,189.25 which the defendant was entitled to offset. It is claimed by defendant that this contract was .actually made in the county of Monroe by the acceptance of bids submitted by the Plymouth Company; that the work was to be done according to the plans and specifications by a firm of architects who resided in the county of Monroe upon a building occupied and owned by the defendant in that county; and the question whether the work complied with the contract could be only decided in the city of Rochester where the building was situated and where the architect resided; that the agreement of arbitration was made in the city of Rochester; that the arbitrators lived there; that the entire transaction took place in that city and was paid for.in that city. A large number of witnesses is then stated toyeside in that city, and the affiant states, what these witnesses are expected to swear to upon the trial. In opposition to the motion an affidavit of the vice-president of the Plymouth Company was submitted alleging that these contracts were made in the city of Hew York and were actually signed there. This affiant is a resident of Hew Jersey, but all the evidence as to the making of the contract is immaterial because the answer admits it. Many of the witnesses specified in the affidavits of both of the parties are not shown to be able to testify to facts which will be material on the trial but it seems to me that this is a case which should be tried where the work was performed and where the witnesses as to the condition of the work when completed and the time of its completion reside. Various technical objections were taken to the affidavits, but I do not think that they justified the denial of the motion.

The order should, therefore, be reversed, with ten, dollars -costs and disbursements, and the motion granted.

. Laughlin, Claeke, Houghton and Scott, JJ., concurred.

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