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Delavan v. Baldwin

3 Cai. 104 Court N.Y. Sup. Ct. English

Decision Majority — Kent, C. J. · Dissent — Livingston, J. · Concurring — Spencer, J.

Contents
p. 104
Daniel Delavan against Jonas C. Baldwin.
NEW-YORK,
May, 1805.

Headnote

After issue joined, the defendant may move to change the venue, when all his witnesses reside in the county to which it is to be changed.
MOTION by the defendant, to change the venue from the city and county of New-York to Onandaga.
In November last, at which time the plaintiff was entitled to ennter a default for want of a plea, notice of a similar motion was given, but from the papers not having been received in season, by the agent of Baldwin's attorney, the application was not then made. In April a plea of the general issue was given and received.
Hopkins,
on these facts, argued, that though the general rule .as to changing the venue by a defendant, was? that it should not be granted after plea pleaded,[1] yet as the plaintiff might in an indirect way, at any time do it, by moving to amend,[2] there could be no reason why a similar indulgence should not be accorded to the defendant. In addition to this, the defendant swears, that the cause of action, if any, arose in Onondaga, in which county the witnesses resided, by whom he could prove the facts contained in the notice subjoined to his plea. Foster v. Taylor 1 D. & E. 781 is in point.
Munro contra.
The defendant is too late.

I am of opinion the venue ought to be changed as there has been no loss of trial, and there will be no delay. This I think ought to be the regulating principle, as these applications are to the discretion of the court.

I am against departing from the practice, by which defendants are restricted from making these motions after

p. 105
Nor do I think there is a sufficient reason for plea pleaded. not having asked for this favor in November last. But what weighs greatly with me is, that the application is on the eve of a circuit, and may impose rather hard terms on the plaintiff, r

I concur in the sentiments of my brother Livingston.

The only difficulty in my mind, was with regard to this request being after issue joined, subsequent to which, all increase of expenses ought, if possible, to be avoided. But as no delay will be created, I think we ought to grant the rule, and had the plaintiff shewn any hardship likely to arise from it, we might have imposed such terms as to prevent any injury a The laches I consider to have been entirely waived by accepting a plea.

That is the opinion I entertain. When a plaintiff receives a plea which he is not obliged to take, he cures the antecedent laches. I agree therefore with the Chief Justice and Mr. Justice Thompson.