Hyperlawhypertext legal database Van Dyck v. McQuade 25 N.Y. Sup. Ct. 376

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Van Dyck v. McQuade

25 N.Y. Sup. Ct. 376 Court N.Y. Sup. Ct. English

Judges Present — BabNARd, P. J., Gilbert and DyemaN, JJ.

Delivered by Gilbert, J.:

Contents

Majority

p. 376
VEDDER VAN DYCK as Receiver of the YORKVILLE SAVINGS BANK, Respondent, v. THOMAS P. McQUADE, Appellant.

Headnote

Motion to change the place of trial — can/not he made mitil after demand after appearance — Code of Civil Proeedmre, §§ 421 and 986.
A motion to change the place of trial, on the ground that neither plaintiff nor defendant reside in the county where the venue is laid, cannot he made until after a demand therefor, (as prescribed by section 986 of the Code of Civil Procedure), has been made by an attorney who has appeared in the action in one of the ways provided for by section 421 of the said Code.
Appeal from an order made at Special Term, vacating an order changing the place of trial herein from Kings county to the county of New York, and denying a motion for such change.
p. 377
The action was brought to recover for alleged overdrafts made by the defendant in his account with a New York city bank, of ;which the plaintiff is the receiver. The defendant’s attorney before serving a formal notice of appearance, or an answer or demurrer, demanded that the place of trial be changed to the county of New York, on the ground that both plaintiff and defendant resided therein. Subsequently on his application an order to that effect was granted by default, and from the order vacating it this appeal was taken.
Alex. Thain, for the appellant.
Ely & Smith, for the respondent.

It is not necessary in this case to decide whether the place of trial was located in the proper comity, for the reason that prior to the motion to change the place of trial no demand was made in accordance with the “Code of Civil Procedure.”

Such a motion can only be entertained after a demand, as prescribed by section 986 of said Code, and such demand must be made by an attorney who has appeared in the action.

Section 421 prescribes that an appearance must be made by the service of a notice of appearance or a copy of demurrer or answer.

No such appearance having been made there was no attorney competent to make the demand.

Order affirmed, with costs.

Present — BabNARd, P. J., Gilbert and DyemaN, JJ.

Order affirmed, with costs and disbursements.