Majority
p. 553Haiz, administrator, etc., v. Starin. (Supreme Court, General Term, Second Department, Filed July 23, 1886.)
Headnote
Vende—Practice—Waiter of right to change place of trial.Where defendant receives an extention of time subject to his stipulation, to take short notice of trial for March circuit in Westchester county. Held, that he had waived the right to change the place of trial to the proper county.
Martin J. Keogh, for appellant, Haiz.
Goodrich, Deady & Goodrich, for respondent, Starin.
The action was brought in the wrong county. The plaintiff lives in New York and the defendant in Montgomery county. The Code in such cases directs the place of trial to be in one of the counties where the parties reside. The removal is a matter of right, unless it was
p. 554
waived. The receipt of the extension of time, subject to stipulation by defendant, to take short notice of trial for the March circuit in Westchester, was a waiver of the right to change the place of trial to the proper county. The defendant accepted a benefit from the plaintiff under an agreement that he would try the case in Westchester county. After receiving the advantage of a stipulation it was too late, and against good conscience, to repudiate the consideration.
Order reversed, with costs and disbursements.
Dykman, J., concurs; Cullen, J., not sitting.