Majority
p. 7James H. Perkins, App’lt, v. Commercial Advertiser Association, Resp’t. (Supreme Court, General Term, Second Department, Filed July 26, 1895.)
Headnote
Venue—W aivbr.The defendant’s right to move, before serving an answer, for a change of the place of trial is not waived by an extension of the time to answer,
p. 8
given by the plaintiff to him, on condition that the issue should remain as-of the date when the answer was first due.
Appeal from an order, granting a change of the place of trial.
Joseph Fitch, for app’lt; Butler, Stillman & Hubbard (.Fdward Kent, of counsel), for resp’t.
Tliis is an appeal from an order changing the place from county of Queens to the city and. county of New York, that the plaintiff gave the defendant twenty daysr further time to plead, on condition that issue should remain of the original date of February 8th; and it is claimed that that extension was a consent to the trial of the action in the county named in the summons and complaint. The position of the appellant is untenable. Under the stipulation, the date of the issue when it was formed was to be the 8th day of February, but the time of joining issue was when the answer was served. As the motion was made before that time, it was,regular and within the statute. The order should be affirmed, with $10 costs and disbursements.
All concur.