Smith v. Prior — 9 Wend. 498

Majority

p. 498

Smith vs. Prior and others.

Headnote

Where, on receiving notice of a motion to change the venue, the plaintiff agrees to change it according to the wish of the defendant, provided he will accept short notice of trial, the motion will not be granted if the defendant ■refuses such offer, unless he shews that it was impossible for him to prepare for trial on short notice.

The defendants moved to change the venue. The plaintiff, on receiving notice of the motion, proposed to change the venue to the county, to which the defendants asked to have it changed, provided they would receive short notice of trial, the circuit in that county being about to be held; to which proposition the defendants refused to accede.

By the Court,

The defendants should have accepted the plaintiff’s offer, and were bound to do so, unless ■. it was impossible for them to have prepared for trial on short notice. This is not even now offered as an excuse, and we

p. 499

cannot but perceive that the sole object of the defendants is delay. This motion therefore is denied, and such will be our order in all similar cases.