Hyperlawhypertext legal databasebeta Shepard v. Squire 28 N.Y.S. 218

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Shepard v. Squire

28 N.Y.S. 218 Court N.Y. Gen. Term Decision date 1894-04-12 English

Delivered by BRADLEY, J.

Contents

Majority

p. 218
(76 Hun, 598.)
SHEPARD et al. v. SQUIRE et al.
(Supreme Court, General Term, Fifth Department.
April 12, 1894.)

Headnote

1. Change op Vende—Right op Nonresident Dependants.
Under Code Civ. Proc. § 984, providing that an action “must be tried in the county in which one of the parties resided at the time of the commencement thereof,” the right to move for a change of place of trial to the proper county is not affected by the fact that defendants are nonresidents of the state.
2. Same—Residence op Parties.
The words “one of the parties,” in section 984, does not mean all the plaintiffs or all the defendants, when they, respectively, consist of several persons.
8. Same—Time op Making Demand.
Under Code Civ! Proc. § 986, providing that demand for change of venue must be served with the answer, or before service of the answer, a demand is sufficient where it was served before the answer to the amended complaint, but after the answer to the original complaint.
Appeal from special term, Monroe county.
Action by Floyd 0. Shepard, Philo Osgood, and William S. King against Watson 0. Squire and Ida Squire. From an order granting a motion to change the place of trial from Monroe to Herkimer county, plaintiffs appeal. Affirmed.
■ The action was commenced by the service of the summons May 8, 1893. The complaint was served by mail upon the defendants’ attorney June 22d, and their answer was served July 20th. Before answering, and on July 5th, a written demand was served that the place of trial be changed from Monroe county, which was that designated in the complaint, to Herkimer county.. On July 20th, with the answer, the defendants’ attorney served upon tlie plaintiffs’ attorney another like written demand for change
p. 219
of tlie place of trial; and on July 21st they served affidavits and notice of motion to be made at Monroe special term of July 31st for change of the place of trial. The motion was then heard, founded upon the first demand, and was denied in September, as prematurely made, with leave to renew. Before the decision of the motion, and on August 18th, the defendants’ attorney served other affidavits and notice of motion to be heard at Monroe special term of September 11th, founded upon the second demand. An amended complaint was served on the defendants’ attorney August 25th; and thereupon, before the time for answering the amended complaint expired, the defendants’ attorney served the plaintiffs’ attorney with another and like written demand for change of the place of trial, withdrew the second motion so noticed, and served other affidavits and notice of motion, founded upon the third demand, for Monroe special term of October 30, 1893. The motion was there heard and granted, and from that order the plaintiffs appeal.
Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
John Van Voorhis, for appellants.
A. M. Mills, for respondents.

The defendants were at the time of the commencement of the action, and are, residents of the state of Washington. The subject of the action is land situated in that state. The plaintiff King is, and has for several years been, a resident of the state of Minnesota. The place of residence of the other plaintiffs is Hion, in the county of Herkimer, H. Y. This action comes within those to which is applicable the statute which provides that an action “must be tried in the county in which one of the parties resided at the time of the commencement thereof.” Code Civ. Proc. § 984. And because none of the parties resided in the county of Monroe, and two of the plaintiffs then resided in the county of Herkimer, the demand for the change to the latter, as the proper county, was made. The defendants’ attorney, not being served with written consent thereto, gave, within due time, notice of motion, founded upon his third demand, for such change of the place of trial. The fact that the defendants were nonresidents of the state does not deny to them the benefit of the statute referred to, for the purpose of proceeding in the manner so provided for changing the place of trial to the proper county. Hor are the words “one of the parties,” in section 984, entitled to such construction as to necessarily embrace all the plaintiffs or all the defendants, when they, respectively, consist of more than one person. In that case each one of the persons is a party plaintiff or defendant, and the import of the language used is, in view of its purpose, the same as if it read that "an action must be tried in the county in which one of the persons who is a party resided.” Although the phraseology of the section differs somewhat from that of section 125 of the prior Code, no material change in its meaning was intended, as appears by the Throops notes, and its apparent effect is no different. The right to 1 lie change of the place of trial to the proper county is absolute, when the proceedings to accomplish it are duly taken and pursued.

But it is urged on the part of the plaintiffs that the third demand did not constitute a basis in support of the motion, because it was

p. 220
served before the defendants answered the amended complaint, and after the answer to the original complaint. It is conceded that they may have effectually served a demand with the answer to the amended complaint. It may be observed that, when it was served, the amended one became the only complaint in the action, as effectually as if none had preceded it; and, for the purpose of proceeding to require and obtain a change of the place of trial, the defendants were at liberty to so treat it. The demand made before answering it was therefore effectual to support their motion made in due time thereafter. In Penniman v. Fuller & Warren Co., 133 N. Y. 442 , 31 N. E. 318 , the demand served with an amended answer to the complaint was held sufficient basis for a motion like the one in question. That case does not aid the plaintiffs. Here the amended one was the complaint, within the meaning of the statute[1] referred to; and before answering, as well as with it, the defendants may properly have demanded the change of the place of trial. There was no waiver, by any proceedings taken prior to the service of this demand, of the right of the defendants to proceed upon it. They had, before the service of the amended complaint, persistently sought to obtain the change. It is difficult to-see that one such demand would be waived by another of like character preceding or following it. In the present case the proceeding was instituted by a demand permitted and authorized by the service of the amended complaint, and the motion was properly granted. The order should be affirmed. All concur.

1 Code Civ. Proc. § 986, provides that: “Where the defendant demands that an action be tried in the proper county, his attorney must serve upon the plaintiff’s attorney with the answer or before service of the answer, a. written demand accordingly.”

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