#### Lorenzo J. Burroughs and John Wilson, Appellants, *v.*David S. Foster and Others, Respondents.

Third Department,

June 28, 1911.

‘Venue — convenience of witnesses — action for'breach of warranty testimony not cumulative.

Where, in an action for breach of warranty as to the condition of a horse purchased by the plaintiff from the defendant, the latter denies the warranty or that the animal was unsound when sold, the condition of the horse at the time of sale and until the commencement of the action is material and must be proven by tl)e plaintiff. Hence, the venue in such action should not be changed to the county of the defendant’s residence on the ground of convenience of witnesses where the greater number of disinterested witnesses as to the warranty and the condition of the horse at and following the sale reside.in or near the county where the venue is laid.

Kellogg- and Sewell, JJ., dissented.

Appeal by the plaintiffs, Lorenzo J. Burroughs and another,- from an order of the Supreme Court, made, at the Oneida Special Term and entered in .the office of the clerk of the county of Madison on the 1st day of February, 1911, changing the place of trial from the county of Madison to the county of Oneida.

*M. H. Kiley,*for the appellants.

*Adrian 8. Malsan,*for the respondents.

Betts, J.:

The plaintiffs, residents of Madison county, bought a .horse of the defendants, residents of Oneida county, for $180, which they alleged the defendants had warranted to be sound and all right while in fact the horse was unsound and had many ailments at the time of the purchase and had been continually growing worse until an action was brought, the venue being laid in Madison county. The defendants’ answer was practically á denial of the warranty, defendants denying that the horse was unsound when sold and alleging that the horse was worth all that was paid for him.

A motion was made at a Special Term in Oneida county, adjoining Madison county, for a change of venue on the part of the defendants from Madison to Oneida county for the con*703venience of witnesses.. There are sis of the defendants and from the affidavits in favor of the motion for a change of venue it fairly appears that the five additional witnesses, aside from the defendants, residents of Utica, are all employees of the defendants, and that consequently their attendance can he secured at any place of trial when desired by the defendants; one of the five from her affidavit submitted on behalf of. the plaintiffs, -would evidently not testify as the defendants expected she would, so whether she he now employed by the defendants or not it reduces their number of the witnesses aside from the parties to four, apparently all employees.

The plaintiffs, in answer to the application «for a change of venue, specify twelve witnesses as to whether or not there was a warranty and as to the condition of the horse, which horse was a stranger to the plaintiffs until the time of its purchase. Nine of these witnesses reside in Madison county. Two- other witnesses of the plaintiffs reside apparently in Oneida county at Oneida Castle and within four miles from the court house in Madison county and much nearer than they are to the Oneida county court house. It would seem- that none of these witnesses are employed by the plaintiffs. - One witness, a resident of Madison county who knows about the condition of the horse, is employed by the plaintiffs. The veterinarian, Doyle, who examined the horse, also resides in Madison county. In addition a man by the name of Van Slyke, one of the twelve proposed witnesses of the plaintiffs and who would be necessary for both parties, resides in Utica, Oneida county, so that as far as the disinterested witnesses who are not employed by either party are concerned, the much greater number of them live in the county where the action was brought.

■ The court at Special Term apparently placed its decision on the ground that the principal question to be determined at the trial was whether there was a warranty or not.

The condition of the horse at the time of the sale, and until the time of the commencement of the action would, of course, be very material and would have to be proven by plaintiffs as would also be the care that was given to him by.the plaintiffs, so that the plaintiffs must have their witnesses at the trial as to the *704condition of the horse. As defendants knew the horse well and practically denied it was unsound when sold, the court cannot from the affidavits submitted hold that the testimony proposed by plaintiffs as to its condition would be cumulative.

I think the venue was improperly changed from Madison county to Oneida county and that the order should be reversed . with costs.

All concurred, except Kellogg and Sewell, JJ., dissenting..

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs to abide the event of the action.