PERKINS v. COMMERCIAL ADVERTISER ASS’N.(Supreme Court, General Term, Second Department.Headnote
Change of Venue—Waiver of Right.An extension of time to answer given by plaintiff to defendant, on condition that the issue should remain as of the date when the answer was first due, is not a consent that the action should be tried in the county in which the venue was made, and defendant’s right to move for a change of venue is not affected thereby, where he moves before serving an answer.
Appeal from special term, Queens county.
Action by James H. Perkins against the Commercial Advertiser Association for libel. Plaintiff and defendant both reside in the city of New York, but the venue was laid by plaintiff in the county of Queens. Summons and complaint were served on January 19, 1895, and the answer was due February 8,1895. On February 7th, plaintiff’s attorney consented that defendant should have 20 days’ further time to plead, on condition that the date of issue be the original date, to wit, February 8, 1895. The consent was by written stipulation signed by plaintiff’s attorney. On March 20th defendant served its answer, together with the demand of change of place of trial to the state of New York. The order was granted, and plaintiff appeals.
Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.Joseph Fitch, for appellant.
Butler, Stillman & Hubbard (Edward Kent, of counsel), for respondent.
This is an appeal from an order changing the place of trial from the county of Queens to the city and county of New York. It is conceded that both the parties reside in the county of New York, that the plaintiff gave the defendant 20 days’ further time to plead, on condition that issue should remain of the original date of February 8th; and it is claimed that that extension was a consent to the trial of the action in the county named in the summons and complaint. The position of the appellant is untenable. Under the stipulation, the date of the issue when it was formed was to be the 8th day of February, but the time of joining issue was when the answer was served. As the motion was made before that time, it was regular and within the statute. The order should be affirmed, with $10. costs and disbursements. All concur.