66 How. Pr. 391 | N.Y. Sup. Ct. | 1883
This action is instituted by the plaintiff, as receiver, to reach the property of the defendant Samuel L; Eisner, and to cause the same to be applied in satisfaction of the judgments mentioned in the complaint.
The plaintiff alleges, among other things, in his complaint, • in substance, that the said Samuel L. Eisner had acquired an interest in the estate of his father Henry Eisner, deceased, consisting of real and personal estate situated in the city of New York, under the provisions of the will of his said father; that Samuel L. Eisner, by an instrument in writing, transferred to the defendant Samuel B. Heidenrich all of the interest of the former in and to the estate of his father, and that such transfer was made in fraud of the rights of the creditors of said Samuel L. Eisner.
The plaintiff, in his complaint, demands that the assignment executed by the'said Eisner and the said Heidenrich be set aside and vacated and declared to be null and void; and
It seems very clear to my mind, considering the facts Stated in the' complaint and the relief therein claimed, that the action is within that portion of section 982 of the Code which is as follows: “And every other action to recover or procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affectin,g an estate, right, title, lien or other interest in real property or a chattel real?
The defendants made a proper demand that the place of trial be changed to the city and county of Hew York, pursuant to section 986 of the Code, but omitted to serve a notice of motion upon the plaintiff’s attorney within the ten days prescribed by such section. I am convinced that the attorneys for the defendant Heidenrich have reasonably excused their failure to serve notice of motion, and should therefore be relieved from the charge of laches, provided the court is authorized to grant that relief, and it seems to me that section 783 of the Code confers ample authority for that purpose. The place of trial must therefore be changed to the city and county of Hew York, but without prejudice to a motion by the plaintiff to change the placb of trial to any other county for convenience of witnesses (Vecder agt. Baker, 83 N. Y., 157; Park agt. Carnley, 7 How. Pr., 355; International L. Ins. Co. agt. Southard, 14 Abb., 240).
Ho costs and allowance upon this motion.
The clerk of Albany county is authorized to enter an order in accordance with the foregoing.