29 N.Y.S. 810 | N.Y. Sup. Ct. | 1894
This is an appeal from an order denying defendant’s motion to change the place of trial. The venue was laid in Westchester county, and the application wa's based on the ground that such was not the proper county, neither party residing therein. The facts were conceded, but the motion was resisted on the ground that the demand for change of place of trial was not. served till some hours after the service of the answer, though served upon the same day. We think that the demand was served in time. The general rule is that the court will not divide a day into fractions, except, for the purpose of guarding against injustice. Blydenburgh v. Cotheal, 5 How. Pr. 200; Jones v. Porter, 6 How. Pr. 286; Clute v. Clute, 4 Denio, 243; Small v. McChesney, 3 Cow. 19. 'Where the ends of justice do not demand it, the court will not inquire at what particular hour the process, pleadings, or notices in a cause were served.” Rogers v. Beach, 18 Wend. 533. As the demand was served in time, the application was one of right. The order appealed from should be reversed, with $10 costs, to abide the event. All concur.
