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Spaulding v. American Wood-Board Co.

39 N.Y.S. 203 Court N.Y. App. Div. Decision date 1896-05-01 English

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p. 203
SPAULDING et al. v. AMERICAN WOOD-BOARD CO.
(Supreme Court, Appellate Division, First Department.
May 1, 1896.)

Headnote

Venue in .Civil Cases—-Right to Change.
A defendant is not entitled, as of right, to an order changing the place of trial, unless he has served his answer accompanied by a demand for the change (Code Civ. Proe. § 986) within the time prescribed; and it is immaterial that a default in answering has been opened, or the answer has been received by consent after expiration of the time for answering.
p. 204
Appeal from special term, New York county.
Action by John F. Spaulding and others against the American Wood-Board Company to foreclose a lien on personal property. From an order denying its motion to change the place of trial, defendant appeals.
Affirmed.
Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Lewis C. Freeman, for appellant.
Ira Leo Bamberger, for respondents.

If there was power and discretion in the special term, then, upon the merits, we think it was properly exercised in denying the motion. It is insisted, however, that the defendant was entitled as of right to the order changing the place of trial. A fatal objection to this claim appears in the fact that it defaulted in serving its answer, and not having made the motion in time, as prescribed by the Code of Civil Procedure (sections 982-984, 986), the defendant was not in a position to insist, as a matter of right, that the place of trial should be changed. Vale v. Railroad, 12 Civ. Proc. R. 103; Taylor v. Smith (Sup.) 11 N. Y. Supp. 29 .

We think the order was right, and should be affirmed, with $10 costs and disbursements.

On Motion for Reargument.

(May 22, 1896.)

It was not intended to express in the opinion the view that the motion to change the place of trial was not made within the number of days allowed by the Code to serve notice of such'a motion. We held, what we still think is the true rule,'that as a matter of strict legal right the demand must accompany the answer as provided by section 986 of the Code, and the answer itself must be served in time. In other words, if default has been made in answering, the subsequent service of the answer on the opening of such default, or the receipt of the answer by consent of the attorney, does not restore the party in default to a position where he can insist as a matter of strict legal right that the place of trial must be changed. Motion denied, with $10 costs.