Willson v. Henderson

15 How. Pr. 90 | N.Y. Sup. Ct. | 1857

Harris, Justice.

There being no stay of proceedings in the case, the plaintiff was at liberty to proceed with the trial, and to take his inquest, but he did so at the risk of having his proceedings set aside, if the motion to change the place’of trial should be granted. It is a familiar rule that the court will never allow a party to be prejudiced by its own delay. Hence the practice of allowing a judgment to be entered nunc pro tunc, in case of the death of a party while the cause was sub judice. Had the motion to change the-place of trial been denied, the inquest would have been regular. But the motion having been granted, the order took effect as of. the time it was made. The delay of the court in announcing its decision will not be allowed to operate to the prejudice of the party in whose favor the decision is made. It is now adjudged that on the 29th of January, when the motion was made, the defendant was entitled to have the venue in the action changed to Albany, The defendant had done all that was required of him. It was the fault of the court that the venue was not then changed. The decision was delayed because the court was not advised what should be done. This delay must not be charged to the account of the defendant. The court having determined the question, must give effect to the decision as of the time when the defendant became entitled to it. The venue was, therefore, in effect, changed from the time the motion was made. (See Crawford agt. Wilson, 4 Barb. 524, and cases there cited.) It follows that the proceedings at the St. Lawrence circuit, after the motion to change the venue was made, were irregular.

This motion must, therefore, be granted, with costs.