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Killbourne v. Fairchild

12 Wend. 293 Court N.Y. Sup. Ct. Decision date 1835-03-19 English

Delivered by Sutheeland, J.

Contents

Majority

p. 293
Killbourne vs. Fairchild.

Headnote

Where, from the course pursued by a defendant in obtaining orders to stay proceedings, and amongst others'an order staying proceedings to enable him to move to change the venue, it is manifest that the object of the defendant is delay, and the plaintiff out-numbers him in witnesses, the motion to change the venue will not only be denied, but it will be denied with costs.
This was a motion to change the venue from New-York to St. Lawrence. The plaintiff out-numbered the defendant in witnesses, wherefore he was entitled tó ask to have the motion denied; but he asked that it be denied, with costs, under these circumstances : the suit was commenced by declaration,
March 19.
p. 294
served on the defendant on the 23d December, On the 9th January the defendant obtained an order for a bill of particulars, to be delivered on the 9th February, and enlarging the time .to plead until the 20th February ; which order he served on the 12th January, (the last day to plead.) On the 20th January a bill of particulars was delivered. On the 21st February the defendant served notice of this motion, accompanied by an order to stay proceedings on the part of the plaintiff until the decision of the motion, and extending the time to plead until sueh decision. It was shown that there was an adjourned circuit appointed, to be held in the city of New-York, on the 20th April, and that the next circuit there would be on the fourth Monday of May next. The first circuit in St. Lawre.nce is appointed to be held on the second Monday of July next.

By the Court,

The object of the defendant is obviously nothing but delay, and the commissioner who granted the orders in this case has either ignorantly or wilfully lent himself to the accomplishment of the defendant’s purposes. No possible apology can be offered for the great extension of the time to plead given by the original order; and after the great delay, no order should have been granted to stay proceedings for this motion. 10 Wendell, 571. The motion for these reasons, is denied, with costs.