7 How. Pr. 462 | N.Y. Sup. Ct. | 1852
The 125th section of the Code, provides that the action shall be tried in the county in which the parties or any of them shall reside at the. commencement of the action; subject, however, to the power of the court to change the place of trial in the cases provided by statute. The 126th section declares that if the county designated in the complaint, be not the proper county, the action may, notwithstanding, be tried therein unless the defendant, before the time for answering expires, demand in writing, that the trial be had in - the proper county, and the place of trial be thereupon changed by consent
In case the proper county is not named in the complaint, the demand must be made before the time for answering expires, or simultaneously with the service of the answer. Under the Codes of 1848 and 1849, there was no provision made for changing the place of trial except as contained in § 125. Now, however, express provision is made by the amendment of 1851. The latter part of §126, reads as follows: “The court may change the place of trial in the following cases:
“ 1. When the county designated for that purpose in the complaint, is not the proper county.
“ 2. When there is reason to believe that an impartial trial can not be had therein; and
“ 3. When the convenience of witnesses and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county tp which the place of trial is changed, unless otherwise provided, by the consent of the parties in writing, duly filed, or order of the court, and the papers shall be filed or transferred accordingly.”
It is not clear but that the court possesses the power, by this amendment, to change the place of trial at any time, even on the ground that the proper county has not been designated in the complaint, although the defendant may have omitted to make the demand in the first instance. .However that may be, it is perfectly evident that a demand was never contemplated in cases
Suppose that ih the present case, the plaintiff had desighated in his complaint the county of Schenectady, as the pltice of trial; Of course that would not have been the proper couhfy. "What would have been the demand of the defendant Under § 1251 Clearly, that the trial be had in the" proper. county; that is, in either Montgomery or Herkimer, where one of the uarties resided '
The 2d and 3d subdivisions of § 126, do not confine the application to the defendant, but the court may make the change on the application of either party, when an impartial trial can not be had, or when the convenience of w ilnesses would be promoted by the change. That section was never designed, and ought not to be construed so as to give one party a benefit which could not be conferred upon the other. It was never intended that a demand in writing should be necessary, in case of an application under the 2d and 3d subdivisions. The second objection is not therefore well taken.
It appears from the defendant’s affidavit, that the principal transactions between the parties occurred in the county of Herkimer. The action grows out of a contract, made between three parties and the canal commissioners, relative to work on the canal, exclusively done in that county. The money was expended there. The parties resided there at the time. The affidavit of the defendant showing the number of witnesses, the nature of the defence, and stating specifically the points of defence which each witness is expected to prove, or establish, is very full. All these facts stand admitted by the plaintiff, as he has interposed no opposing affidavit. If he could have denied or explained any of these statements, he undoubtedly would have availed himself of the opportunity (Jordan agt. Garrison, 6 How. Pr. R. 6). The motion must be granted,