#### Samuel Neiman and Leo *W.*Cohn, Respondents, *v.*Barney Gardner, Appellant.

First Department,

June 2, 1911.

Practice — change of venue — place of sale.

Where in an action for goods sold and delivered the principal issues to he tried are whether the goods were ever delivered, and, if so, whether at the time called for in the order, a motion for a change of the place of trial to the county in which the transaction arose, and in which the goods were to he delivered, should he granted. It is plain that the material witnesses must he largely obtained in that county.

Appeal by the defendant, Barney Gardner, from an order of the Supreme Court, made at the New York Special Term, bearing date the 24th day of October, 1910, and entered in the office of the clerk of the comity of New York, denying the defendant’s motion to change the place of trial.

*James O. Sebring,*for the appellant.,

*William J Carey,*for the respondents.

*198McLaughlin, J.:

The plaintiffs are engaged in business in the city of New York and the defendant at Hammondsport, Steuben county, N. Y. On the 19th of May, 1909, one of the plaintiffs went to the defendant’s place of business and obtained from him the following order (except the numbers, sizes and prices) for children’s clothing:

> “Order No. *May*19/1909. •

> “M.

> “ Ship to B. Gardner,

> “At Hammondsport,

> “N.'Y.

> “ How Ship Erie. When Oct. 1st.

> “Terms Nov. 1st, 7/TO, 5/30, 4/60.”

Action was brought, the venue being laid in the county of New York, to recover the price alleged to have been agreed upon at the time the order was given. The answer admits the giving of the order and alleges that the terms of the same were.not complied with by the' plaintiffs; that they neglected and refused to deliver the clothing on or before the 1st of October, 1909, and made no attempt to deliver the same until after October fifteenth of that- year; and that the- same were never,- in fact, delivered to defendant and that he has never. received or accepted the same. After issue had been joined the defendant, for the convenience of witnesses, moved to change the place of tidal from the county of New York to the county of Steuben. The motion was denied and he appeals.

The contract was made in Steuben county and the goods were, according to the order, to be there. delivered. The principal issues to be tried, in fact substantially the only issues, are: (1) Whether the goods were ever delivered to the defendant at all; and (2) if so, whether at the time called for by the order. Upon these issues it is perfectly obvious the witnesses must be largely obtained in Steuben county. This, taken in connection with the fact that the transaction arose in that county, was sufficient to -require that the trial should be there had. *(Brody*v. *Weed & Co.,*137 App. Div. 754; *Shaff*v. *Rosenberg,*116 id. 366; *Denzer*v. *Grewen,*133 id. 706.)

*199The order appealed from, therefore, is. reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P. J., Laughlin, Clarke and Scott, JJ., concurred.

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