Harris v. Bradley

66 N.Y.S. 847 | N.Y. App. Div. | 1900

Smith, J.:

Except for the stipulation signed by the defendants other than the distilling company, the defendants’ motion for the removal of the place of trial would be unanswerable. If this stipulation had been signed by all of the parties defendant, it would be such a consent on their part as would require the court to retain the place of trial in Albany county. Moreover, if the stipulation on the part of the other defendants than the distilling company had been made as an intentional waiver of the right to change the place of trial, the relation of those defendants to the distilling company is such that the court might well hold the distilling company to the stipulation of its officers, though not made on its behalf. The holding, however, in this case that such a stipulation is an estoppel against the making of this motion would be rather technical, and, in our judgment, should not be made to the injury of the distilling company,'not a party to the stipulation. All of the defendants unite in this application. As . the estoppel claimed is not broad enough to forbid all the defendants from asking for a change of venue, and as the case seems otherwise to be one clearly calling for such a change, we-think the Special Term erroneously denied the defendants’ motion and that the action should be tried in the county of New York.

The order should, therefore, he reversed and defendants’ motion granted, with costs to the appellants to abide the event of the action.

All concurred.

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