4 How. Pr. 342 | N.Y. Sup. Ct. | 1850
Edmonds, Justice, observed that many of the profession had supposed that the service of such a demand, under section 126 of the code, of itself worked a change in the place of trial, where the county designated for that jiurpose in the complaint is not the proper county. But this was a mistake. The effect and object of that section is to allow the cause to be tried in the county designated in the complaint, though neither of the parties reside there, unless the defendant shall serve a demand in writing that the trial be had in the proper county, and in case such demand be served, the defendant may, on the trial, avail himself of the objection. So that where such demand is served, the plaintiff must change
The necessity of an application to the court, is quite apparent; for suppose the plaintiff resides in one county, the defendant in another, and the place of trial is designated in a third; into which the two proper counties is the place of trial to be changed ? And so, if there are several defendants residing in different counties, which defendant is to have the choice ?
The whole thing is subject to the power of the court to change the place of trial under section 125, and its power must be invoked. The defendant by his own act cannot change it.
This motion must, therefore, be denied; but as the notice is broad enough, the defendant may have the place of trial changed to the proper county if he desires it.
