p. 470John A. Sylvester, Respondent, v. Ray B. Lewis, Appellant.Headnote
Tenue — motion to change it because the wrong county has been named in the summons —proof that the convenience of .witnesses requires that it be kept in the county designated is incompetent.On a motion to' change the place of trial of an action to the county in which both of the parties reside, as required by section 984 of the Code of Civil Procedure, the plaintiff should not he permitted to read affidavits showing that the convenience of witnesses requires that the trial take place in the county named in the summons and complaint.
The proper practice is to change the place of trial to the proper county and allow the plaintiff to make "a motion to change it hack to the county designated in the . summons for the convenience of witnesses.
Appeal by the defendant, Ray B. Lewis, 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 Oneida on the 8th day of October, 1900, denying the defendant’s motion to change the place of trial from the county of Oneida to the county of Herkimer, on the ground that the parties to the action were both residents of the county of Herkimer.
George Id. ddtmce, for the appellant.
J. W. Watts-, for the respondent.
• The action is brought to recover moneys alleged to have been loaned by plaintiff to defendant. The answer contains a general denial as to part of plaintiff’s - cause of action and interposes a counterclaim for the value of services alleged to have been rendered plaintiff by defendant. The action, therefore, does not fall within either sections 9S2 or 983 of the Code of Civil Procedure. Both parties reside in the county of’ Herkimer, and under section 984 of the Code of Civil Procedure that is the proper place for the trial of the issues. Oneida county is designated in the complaint as the place of trial. Defendant with his answer served a demand that the place of trial be changed to Herkimer, the proper county. Plaintiff having failed to consent to such change defendant duly made a motion td change the -place of trial in accordance with said demand. Plaintiff
p. 471was permitted, in opposition to defendant's motion, to read affidavits showing that the convenience of witnesses required that the place of trial be retained in Oneida county and the court denied defendant’s motion upon that ground. This was error. The proper orderly practice in such cases is to grant the order changing the place of trial to the proper county. Plaintiff could then have made a motion to change the place of trial back to Oneida county for the convenience of witnesses, and this would have given defendant an opportunity to meet the moving affidavits which he could not have under the practice adopted in this case excepting by the special favor of the court in granting a postponement of the hearing. (
Veeder v. Baker, 83 N. Y. 156 ;
Acker v.
Leland, 96 id. 386, 387;
Stimson v.
Stimson, 29 N. Y. St. Repr. 21 ;
Hubbard v.
National Protection Ins. Co., 11 How. Pr. 149 ;
International Life Assur. Co. v.
Sweetland, 14 Abb. Pr. 240 ;
Park v. Carnley, 7 How. Pr. 355 ;
People v.
Kingsley, 8 Hun, 233 ;
Gifford v.
Town of Gravesend, 8 Abb. N. C. 246 .)
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted with, ten dollars costs.