Ganz v. Edison Electric Illuminating Co. — 29 N.Y.S. 810

Majority

p. 810

GANZ v. EDISON ELECTRIC ILLUMINATING CO. OF NEW YORK.

(Supreme Court, General Term, Second Department.

June 18, 1894.)

Headnote

Change of Venue—Service of Demand.

Service of demand for change of venue is in due time when made on the same day the answer was served, though after service of the answer.

Appeal from special term, Westchester county.

Action by George Ganz against the Edison Electric Illuminating Company of New York. From an order denying a motion to change the place of trial, defendant appeals.

Reversed.

Argued before BROWN, P. J., and CULLEN, J.

Eaton & Lewis (Arthur P. Hodgkins, of counsel), for appellant.

Cantor & Van Schaick, for respondent.

This is an appeal from an order denying defendant’s motion to change the place of trial. The venue was laid in Westchester county, and the application wa's based on the ground that such was not the proper county, neither party residing therein. The facts were conceded, but the motion was resisted on the ground that the demand for change of place of trial was not. served till some hours after the service of the answer, though served upon the same day. We think that the demand was served in time. The general rule is that the court will not divide a day into fractions, except, for the purpose of guarding against injustice. Blydenburgh v. Cotheal, 5 How. Pr. 200 ; Jones v. Porter, 6 How. Pr. 286 ; Clute v. Clute, 4 Denio, 243 ; Small v. McChesney, 3 Cow. 19 . 'Where the ends of justice do not demand it, the court will not inquire at what particular hour the process, pleadings, or notices in a cause were served.” Rogers v. Beach, 18 Wend. 533 . As the demand was served in time, the application was one of right. The order appealed from should be reversed, with $10 costs, to abide the event. All concur.

Cases cited

Blydenburgh v. Cotheal 5 How. Pr. 200 N.Y. p. 810
Jones v. Porter 6 How. Pr. 286 N.Y. Sup. Ct. p. 810
Small v. M'Chesney 3 Cow. 19 N.Y. Sup. Ct. p. 810