Rodie v. Verdon , 49 N.Y.S. 178 ( 1898 )

Clearwater, J.

. The action was begun by the service of a summons on the ,27th day of August, 1897, and issue was finally joined by the service of the plaintiff’s reply, on the 14th of December following. The county designated in the complaint as the place of trial is Ulster. The action is to recover the value of a steam boiler, and work, services and materials furnished to the defendant ■ by the plaintiffs. The defense is a breach of the contract and the warranty; that the breach consisted in the unfitness of the boiler and materials for the purposes for which they were intended, and contracted for, and the failure of the plaintiffs to perform the contract in accordance with its terms. A counterclaim based upon the alleged breach is pleaded. The entire transaction took place at or near the city of Hoboken, in the state of Hew Jersey.

The defendant resides in Jersey City, in that state, hut has an office for the transaction of business in the city of Hew York. One of the plaintiffs claims to reside, and has his principal office in the city of Kingston in -the county of Ulster. The other resides at Hoboken, where most of the witnesses live. ■ -

Ho demand that the place of trial be changed, save as made in this motion, has been served.' On the 18th of December, 1897, the plaintiffs’ attorney,- who resides at Kingston, served a notice of trial for the -trial term -of this' court then about to be held at. the courthouse in Kingston. on • the 3d day of January, 1898. On the 23d day of December, he received from the defendant’s. áttorneys the following telegram:

“ Hew. York, December 23, 1897-

“To Howard- Chipp, Esq., 29 East Strand, Kingston,-R Y.:

- “ On account of Hr. Evarts’ absence in Europe, will you consent to let case go- over to February term..

“ Evarts, Choate & Beaman.”

The next morning he telegraphed this answer: ' :

“To Evarts, Choate & Beaman, 52 Wall street, Hew York:

“ Case may go over to February term as you request.

“ Howard Chipp.”

On the 29th of December he received by mail this stipulation from, and signed by the defendant’s attorneys: - .

“ HEW YORK SUPREME . COURT — Ulster County. ;

ALEXANDER H. RODIE and WIL- ; LIAM S. BODIB, Plaintiffs,

against

FREDERICK A. VERDON, Defendant.

' Consent.

“ It is hereby consented by the respective parties to the above-entitled action, that the trial thereof now set down for January 3, 1898, be adjourned tó and placed upon the calendar for the Febru-ary, 1898,. term of this court.

“ Dated-, December 24, 1897.

* ?

1 ‘ ' “ Attorney for plaintiffs,

' - . “ Evarts, Choate & Beaman,’

“ Attorneys- for defendant.”

On the call of the calendar on the 3d of January, he stated to th¿ court that the case went over the term by agreement of counsel. On the 7th of January, notice of this motion with supporting affidavits were served.

It is contended by the plaintiffs that the affidavit is insufficient and that there is no warrant .of law for changing the place, of trial to the county of Kings.

The affidavit is, in my judgment, sufficient, and within the rule requiring the moving party to state what it is expected to prove by the .witnesses whom he says he intends to call. ¡¡Nor is there much force in the criticism that the plaintiff should have asked to have the trial in the county of ¡New York, rather than in that of Kings. The pressure of business and the crowded condition of the trial calendars in the former county justifies the selection of the latter, and the motion would be granted, were it not for the telegram and stipulation of the defendant’s attorneys. These, I think, in legal effect, constituted an agreement that the trial should be adjourned, and the cause placed upon the calendar of the following Ulster Trial Term for February, 1898.

Without discussing the course which the defendant might have pursued, it is sufficient to say that having asked, received and enjoyed a favor, it is now too late and against good conscience for him to repudiate the agreement upon which it was granted.

The motion is denied, with $10 costs to abide the event of the action, in event the plaintiffs succeed.

Motion denied, with $10 costs to abide event.