Binder v. Metropolitan Street Railway Co.

74 N.Y.S. 54 | N.Y. App. Div. | 1902

Hirschberg, J.:

The defendant was entitled to a change of the place of trial upon the merits of the motion by the terms of section 984 of the Code of Civil Procedure. The venue is laid in the county of Kings and the defendant, a domestic corporation, does not, and never did, transact business in that county. Three affidavits were read upon the motion, each tending to establish the fact that the plaintiff at the time of the commencement of the action resided in the county of New York. The plaintiff made no affidavit to the contrary, but his attorney made affidavit that he was informed and believed that the plaintiff at that time resided in the county of Kings. The source of information is not disclosed, but manifestly no information and belief, generally expressed, could overcome the specific and undisputed facts as to the plaintiff’s residence set forth in the moving affidavits. The right to the change of the place' of trial was, therefore, absolute, unless the. defendant had lost it-by loches, prior adjudication or in some other way.

The plaintiff insists that the application was made too late. The summons and complaint were served on the 16.th day of August, 1901. The defendant served with its answer on the 6th day of September, 1901, under section 986 of the Code of Civil Procedure, a demand in writing that the action should be tried in the proper county. These papers were served by mail. The plaintiff not having consented to the change, the motion was made by the service of the motion papers on October 7, 1901.

. The motion was in time. It is true that by the terms: of section 986 (sufra) the plaintiff has five days after the demand to consent' to the. change, and the defendant may move within ten days after" the expiration of the period of consent; but where service is by mail, the time specified is doubled by virtue of section 798 of the Code of Civil Procedure. That the provisions of that section apply to the time limited to the plaintiff to .consent, as well as to the defendant’s subsequent motion, was expressly held in Lesser v. Williams (52 Hun, 610; 23 N. Y. St. Repr. 396 ; affd., 119 N. Y. 639). The defendant accordingly had until October 6, 1901, to make the motion, and that day falling on Sunday, was excluded in the computation by the Statutory Construction Law (Laws of 1892, chap. 677, § 27). It follows that the motion made on October 7, 1901, was timely. >

The plaintiff further insists that the defendant is bound by a former adverse adjudication. It appears1 that the defendant on September 30, 1901, obtained an order of the Special Term requiring the plaintiff to show cause why he should not furnish the defendant with a verified statement of his address, or, in default thereof, why an order should not be made removing the action to the county of New York. On October 2,1901, on the return of the order to show cause, the court directed the required disclosure of the plaintiff’s address, but refused to grant the alternative relief. The order did not preclude the defendant from making the motion now under consideration. The change of the place of the trial was then sought as a penalty for the plaintiff’s anticipated default, and its denial was no bar under the circumstances disclosed to a subsequent application as a matter of right.

The order should be reversed, with ten dollars costs and. disbursements, and the motion granted, with costs to the defendant to abide the event.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs to the defendant to abide the event.