43 N.Y.S. 111 | N.Y. App. Div. | 1897
It seems to me that, within the principle of the cases of Rector v. Ridgwood Ice Co. (38 Hun, 293; affd., sub. nom. Rector v. Ridgewood Ice Co., 101 N. Y. 656), of McCosker v. Smith (20 Civ. Proc. Rep. 324; affd., 133 N. Y. 672) and of Faherty v. S. S. T. Boat-Line (43 Hun, 432), the place designated in the complaint as the-place of trial is controlling, and that, therefore, the motion to strike it from the calendar should have been granted.
It was insisted upon the argument of this appeal that the change here had been inadvertently made, but we must decide.' upon the record before us, however meagre that may be.
All that we have before us is the summons, notice of retainer,., the complaint and answer, the order denying the motion, the memorandum of the justice of his reasons for such denial and the notice-of appeal.
The order appealed from recites only the reading of the summons,, notice of retainer, complaint and answer, which contain nothing- to-show but that the change was deliberately and intentionally made by the plaintiff and assented to by the defendants. Service of the answer, entitled as above set forth, should have called the attention of the plaintiff’s-attorney to the change that had been made, if it was unwittingly made on his part.'
Of course, the mere inadvertence of an attorney in naming a different place of trial in the complaint from that named in the-' summons, should not be held to effect a change of the place of" trial desired by .him, but if he does not desire such change to result in changing the place of trial, he should move promptly to' correct his mistake, and not allow his adversary to act upon the assumption that the place of trial desired by him is as designated in the complaint.
The oiider should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.
All concurred.
'Order reversed, with ten dollars costs and disbursements, and motion granted.
