Fish v. Lyon — 1 How. Pr. 234

Majority

p. 234

Phineas C. Fish vs. George Lyon.

Headnote

_A motion to amend declaration by changing the venue (where the action is local) will be granted on terms, after issue joined and there hai/ been circuits passed at which the cause might have been tried.

Motion by plaintiff for leave to amend his declaration by changing the venue.—This was a local action (assault and battery) which arose in the city and county of New York. The plaintiff laid the venue in the county of Otsego. Plea general issue.

R. W. Peokham, Plffs Counsel. W. H. Olin, Plffs Ally.

N. Hill, Jr., hefts Counsel. J. R. Flanagan, hefts Ally.

The plaintiff’s attorney supposed the cause might be tried in Otsego county, and there being one important witness there, helaid his venue in that county, and expected that if defendant’s attorney desired to change the venue, he would move for that purpose. And also supposed that he was bound to demur to the declaration, as it appeared upon its face, that the action was local. The plaintiff not having done either he concluded the defendant intended to take advantage of it, by non-suit at the trial. Defendant insisted that the plaintiff knew the action was local when he commenced it: he should have amended in twenty days. The defendant could not move to change venue in local action. The plaintiff should have moved in June, there had been three opportunities to try.

Granted the motion, as follows: defendant’s plea to stand, but if he elect to withdraw it, he may do so and then plaintiff to pay costs of that plea, or he may plead any other or additional plea, on verifying the necessity of such plea to his defence by affidavit. Rule accordingly.