Majority
p. 518Barstow vs. Randall and others. moved to change the venue from Tompkins to Cortland. The notice was for a motion to change the venue, or for such other rule or relief as the court should deem proper. cited Swartwout v. Payne, ( 16 John. 149 .)
Headnote
Where the plaintiff applies for a change of venue, his notice of motion should be for leave to amend the declaration in that respect.But where the notice was of a motion to change the venue or for such, other rule or relief &c., and the affidavit plainly showed the object and necessity of the application; held that, under the clause asking for general relief, the plaintiff might have leave to amend his declaration by changing the venue.
A. Taber, for the plaintiff,
M. T. Reynolds, contra,
When the plaintiff moves, he should give notice of a motion for leave to amend his declaration by changing the venue;[1] but as the affidavit plainly shows the object and necessity for the motion, the proper rule may be granted under the clause in the notice asking for other relief. (1 Cowen, 135, note.)[2] It is only giving the plaintiff the particular thing which he asks, though in a modified form.
Ordered accordingly.
(a) (a) а) See 4 Hill, 62 , note, pl. 2, and the cases there cited.
(b) (b) See Ferguson v. Jones, ( 12 Wend. 241 ,) in connection with Stearns v. Kenyon, (post, p. 519;) also 1 Barbour's Ch. Prac. 570.