Beardsley v. Dickerson

4 How. Pr. 81 | N.Y. Sup. Ct. | 1848

Parker, Justice.

This action was brought for an injury to personal property, and Rensselaer county was designated, in the complaint, as the place for trial. The injury complained of occurred in the county of Saratoga, which was the proper place for trial under the 5th subdivision of section 103 of the code. By the 105th section, the defendant is authorized, before the time of answering expires, to demand, in writing, that the trial be had in the proper county. Under that provision, the defendant might have required a change of the place of trial to Saratoga, but it did not authorize him to demand, as he did in this case, that the trial should be had in Hew York. The object of the 105th section was to enable the defendant to bring back the cause for trial to the county which the plaintiff ought to have selected under the 103d and 104th sections. It is the obvious intention of the statute, that the cause shall be tried in the county, designated by sections 103 and 104, unless the place of trial is changed by the court on motion. The defendant’s demand, therefore, was irregular, and can have no influence upon this motion.

But the defendant now moves to change the place of trial to Hew York, under the 49th section of the Judiciary Act, (Laws of 1847, page 333,) which is still in force.

• The plaintiff objects, in the first place, that issue was not joined in the action, when the notice of motion was served. (3 How. Pr. Rep. 72.) It is stated, in Mr. Millard’s affidavit, “that the reply had not been served” when the papers for the motion were served. But it does not appear, from the affidavits, whether a reply has since been served, nor is-it shown that the time to reply has been extended, nor that the plaintiff denied, or intended to controvert any material allegation in the answer.

Mr. Brewster’s affidavit states that the answer was put in on the 14th of October last. An examination of the answer shows that most, if not all, of the material allegations in the complaint are denied. It is shown, by affidavit, that the motion papers were served on the defendant’s at-' torney on the 4th of Hovember last, which was more than twenty days after the service of the answer. The time, therefore, for the plaintiff to reply, under section 131 of the code, had elapsed.

By section 205 of the code, an issue of fact arises,—•

1. Upon a material allegation of the complaint controverted by the answer, or

2. Upon new matter in the answer controverted by the reply, ox

3. Upon new matter in the reply.

The time for replying having elapsed, there was no issue of fact to be tried in the cause, except those arising on the allegations of the complaint controverted by the answer. The objection that issue was not joined, and that for that reason this motion is prematurely made, can not therefore be sustained.

Upon the merits of the motion, I think there are good reasons shown for trying the cause in Hew York. The parties both reside there, and though the cause of action arose in Saratoga, it is shown that many facts and circumstances which occurred in the city of Hew York must necessarily be given in evidence on the trial. It appears also that there are more witnesses residing in New York than in Rensselaer. The stipulation offered by the plaintiff will not avail him to retain the cause in Rensselaer.

The motion to change the place of trial is therefore granted.