Taylor v. Smith — 32 N.Y. St. Rep. 843

Majority

p. 843

James E. Taylor, Resp’t, v. Andrew K. Smith, App’lt.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Venue — Motion for change must be taken within time limited bt § 986 of the Code.

Pending a motion to change venue to proper county, defendant’s answer was stricken out and no further action taken on the motion. The order striking out the answer having been reversed on appeal, a new motion was made, which was denied as not being made in time. Held, no error; that if defendant claimed a change of venue as a matter of right he is bound by the limitation in § 986 of the Code, and not having made his motion in that time had no absolute right to an order changing the place of trial.

p. 844

Appeal from order denying motion to change the place of trial

JE. JR. Dodge, for app’lt; Clark Bell, for resp’t.

This action was commenced by the service of a summons and complaint in September, 1889, the place of trial being named as the county of New York. The plaintiff resides and resided when this action was begun in the county of Yates, and the defendants all resided in the county of Steuben. In October, 1889, before answering, the defendants served on plaintiff’s attorney a written demand that the place of trial be changed to the proper county, viz., the county of Steuben. The plaintiff neglected to comply with this demand, and motion papers were served on the plaintiff’s attorney for an order changing the place of trial, such motion being returnable on the 4th of November, 1889. Prior to the time at which this motion to change the venue was made returnable, a motion was made by the plaintiff to strike out the defendant’s answer, which had been in the meantime interposed, as frivolous, and this motion was granted. No further action was taken in reference to the motion to change the venue. An appeal was taken to the general term from the order striking out the answer, and that order and the judgment entered thereon were subsequently reversed. After the answer had been restored by this judgment of the general term, the defendants made a new motion to change the place of trial, which was denied upon the ground that it was not made in due time.

With this determination of the court below we see no reason to interfere. If the defendant claimed as matter of right that the place of trial should be changed, he was bound by the limitation contained in § 986 of the Code, and not having made his motion within the time therein prescribed, he had no absolute right to an order changing the place of trial.

It is true that by subd. 1 of § 987 the court has the power in a case like the present at any time to change the place of trial, but that is a power to be exercised according to the circumstances of each particular case. Thei^Vas nothing in the attempted defense set up in this case which addressed itself particularly to the favor of the court, as it would seem to have been put in merely for the purpose of delay.

We think under these circumstances the court should not have granted the motion, and the order appealed from is affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.