Faherty v. Schuyler Steam Tow Boat Line — 6 N.Y. St. Rep. 756

Majority

p. 756

John Faherty, Resp’t, v. Schuyler Steam Tow Boat Line, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 15, 1887.)

Headnote

Practice—Right to amend—Change of venue—Code Civ. Pro., § 542.

The court has no power to allow the summons and complaint to be amended by changing the venue, except within twenty days after they were served. Following Rector v. Ridgewood Ice Company, 101N. Y., 656.

E. A. Brewster, for resp’t; W. Frothingham, for app’lt.

As an original question we incline to affirm the disposition of the motion at the special term. The change in the phraseology of par. 417 seems only to indicate that plaintiff must specify his desire about venue in summons, whereas under the old code he need not have done that. The word designate is used of the matter of venue in the complaint (par. 481), and the same word is used in all the subsequent references to the same point (paragraphs 985, 987 and 988). It is a stronger and more suggestive word than desire. Again the right to demand a change is predicated in the designation in the complaint, and not in the desire specified in the summons.

When the demand is made the defendant must do just what the plaintiff did in the summons, i. e., specify what he requires, which is one of the meanings of the term desire, except that he must specify a proper county, while plaintiff might specify any county, and the action could be properly tried in the county thus specified by plaintiff in his summons unless defendant made the demand, and plaintiff consented or the court ordered a change. The word may is used of the action of the court, while must is used of the other cases. And again, if the summons is to control, why require any designation in the complaint at all ?

Besides this, the old rule was according to the plaintiff’s contention; and, generally speaking, the code was intended

p. 757

only to express the judicial interpretation of the old 'rule. And again, the only right which defendant gained by Ms demand was to have the action tried in a proper county. His mere specification of the county which he desired would not seem to render the county of plaintiff’s residence an improper county, or make that of the defendant’s the only proper county.

But Rector v. Ridgewood Ice Co. (22 Week. Dig., 551; affirmed 101 N. Y., 656 ), seems in point and to rest on a change respecting the right to amend, as of course within twenty days, under section 542, i. e., the amendment must be without prejudice to the proceedings already had. It assumes that the demand for a change to the county specified by defendant in his demand is a proceeding giving a right. That does not seem to us to be the purpose; for if the demand was not followed by consent (under par 985), the court does, not seem bound to make the order. It may do it (par. 981). Why go to the court at all to effect the change if the demand resulted in a right ? It may be that the case was affirmed on a question of discretion by the general term, but as briefly reported, it seems .to hold the right to amend, as of course, is abridged as matter of law, that it was too late in that case as matter of law; and, if so, it was too late in this one.

We, therefore, reverse the order, with costs, on the quesr tian of power above, following what seems to be the rule established by the affirmance of the Rector case. But the order should especially show tMs fact so that plaintiff may have the benefit of the point in the question of power.

We exercise no discretion.