McCosker v. Smith — 38 N.Y. St. Rep. 227

Majority

p. 227

David McCosker et al., Resp’ts, v. Emanuel Smith, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 21, 1891.)

Headnote

Venue—Changed by an amended complaint.

The summons and complaint in an action named Pulton county as the place of trial. After service of an answer, the plaintiff served an amended and fuller complaint naming New "York county as the place of trial. The action could properly be tried in the latter county. Reid, that plaintiff had the right in this manner to change the place of trial.

Appeal from order denying motion to set aside an amended complaint

Clark L. Jordan, for app’lt; J. M. & S. Dudley, (H. W. Thorn, of counsel), for resp’ts.

The action was commenced by service of a summons and complaint. The summons stated that the trial was desired in Fulton county. The complaint named the same county as the place of trial within due time. After service of an answer the plaintiffs amended their complaint, making the same allegations as in the original complaint, though in different language, and naming the county of New York as the place of trial. The plaintiffs are residents of New York and the action -is on a promissory note. The county of New York is therefore a proper county.

The defendant moved to set aside the amended complaint. The motion was denied and the defendant appeals.

The language of the amended complaint is fuller than that of the original; and it would be unjust to deprive plaintiffs of the right to state the cause of action in such language as they prefer. But the real point made is that the plaintiffs could not by such an amendment practically change the place of trial.

p. 228

It is decided in this department that the plaintiff may do this. Rector v. Ridgwood Ice Co., 38 Hun, 293 ; affirmed 101 N. Y., 656 . In that case the court held that such a change did not prejudice proceedings already had. And inasmuch as a motion of defendant to change the place of trial to another county was pending when the amended complaint was served, such service did not defeat the making of the motion. But the right to serve such amended complaint was admitted. See also Moulton v. Beecher, 1 Abb. N. C., 235 ; Stryker v. N. Y. Ex. Bank, 28 How., 20 ; Toll v. Cromwell, 12 id., 79 .

The same view is recognized in Faherty v. Schuyler S. T. B. Line, 43 Hun, 432 ; 6 N. Y. State Rep., 756. But the court held that the demand of defendant for a change of place of trial made prior to the amended complaint was not prejudiced by the amended complaint and therefore defendant might follow up his demand by the usual motion. That case therefore accords with the decision of the special term in this case.

In Wadsworth v. Georger, 18 Abb. N. C., 199 , at special term, a view was taken apparently different, but really not entirely inconsistent with the decisions above cited. Because in that case the amended complaint was served after notice of motion to change the place of trial had been given by defendant Therefore, as held in Rector v. Ridgwood Ice Co., since the amended complaint was without prejudice to proceedings already had, the motion should not be defeated thereby.

We think, therefore, that the special term properly held that the complaint might be amended as was done.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.