p. 641Alvah J. Zimmer, App’lt, v. John J. Matteson and Hubbard L. Matteson, Resp’ts.(Supreme Court, General Term, Third Department,Headnote
"Venue—Change of—Practice.One of two defendants, who appeared separately, moved for a change of the place of trial, on the ground of convenience of witnesses. Three days before the motion day an additional affidavit was served, showing that the other defendant consented to the motion and adopted the affidavits on which it was noticed, which affidavit was returned as not served in time. Held, that it was error to allow such affidavit to he read on the motion and grant the motion.
Appeal from an order of the Montgomery special term, changing the place of trial from Fulton to St. Lawrence county, upon the ground of the convenience of witnesses.
N. H. Anibal, for app’lt; Wilmer H. Dunn, for resp’ts.
—The complaint is upon a breach of warranty in the sale of a horse. Each defendant answered separately and by different attorneys. The defendant John separately served affidavits and notice of this motion more than eight days before the motion day. Ho reason why the other defendant did not unite in the motion was stated in the moving papers. Three days before the motion day the attorney for the defendant John served an additional affidavit, showing that the other defendant, Hub-
p. 642bard, consented to the motion, and adopted the affidavits upon which it was noticed, with a notice endorsed thereon that the additional affidavit would be read in support of the motion. The plaintiff’s attorney promptly returned the additional affidavit, endorsing thereon that he did so because it was not served in time, and that he should object to its being used upon the motion. Upon the hearing of the motion the plaintiff’s attorney did, by his own affidavit, show that the additional affidavit was not served, in time, and objected to its use upon the motion. The objection was overruled, and the motion granted.
Without the additional affidavit, the motion ought not to have-been granted. Bergman v. Noble, 10 Civ. Pro., 190; 1 N. Y. State Rep.. 543, Welling v. Sweet, 1 How. Pr., 156 . The order, therefore, rests upon an affidavit which, unless the Code, § 780, be disregarded, was improperly received. The objection is technical, but the plaintiff had the right to rely upon the statute. Nor do we ¡know that he would have opposed the motion if the additional affidavit had been served in time. As it was, he had valid legal ground for resisting it, and was entitled to an order denying it.
Order reversed with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Learned, P. J., and Mayham, J., concur.