Starks v. Bates — 12 How. Pr. 465

Majority

p. 465

SUPREME COURT.

Starks, receiver, agt. Alfred S. Bates and Peter Bates.

Headnote

In an action affecting the title to lands, the court may change the place of trial as matter of right.

Where one defendant makes default, and it appears that he is assisting the plaintiff against his co-defendant, the latter may move alone, for a change of the place of trial.

New-York Special Term,

Dec., 1854.

R. W. Townsend, for motion.

Richard Busteed, opposed.

The defendant Peter Bates moves to change the place of trial'. Alfred S. Bates, the other defendant, has made default, and, in fact, is aiding the plaintiff, and makes an affidavit in opposition to this motion, in which he shows that his feelings and interest are all with the plaintiff. Under these circumstances, it is no objection that Alfred does not join in the motion. The action is to have a deed from Alfred to Peter declared void for fraud—or as held only for the benefit of Alfred.

This is an action to affect the title to lands, as, if it succeeds, . the title of Peter will be made void, or changed from an absolute one to a mere security for money. A like cause of action has been held before, in this district, to be sufficient ground to change the place of trial as matter of right.

Motion granted—$10 costs, to abide event.