Summary
In Larkin v. Watson Wagon Co. (supra) the ground alleged was the convenience of witnesses and was addressed to the discretion of the court under subdivision 3 of section 987. It was held that a previous demand was not necessary. The court said that a demand was only necessary when the defendant demands that the place of trial be changed as a matter of right, and not as a matter of discretion.
Summary of this case from Hudson County Consumer's Brewing Co. v. OdellOpinion
January Term, 1902.
William O. Gantz, for the appellant.
Montague Lessler, for the respondent.
This action was brought to recover a sum alleged to be due the plaintiff for the purchase price of a quantity of lumber sold by the plaintiff's assignor to the defendant, a domestic corporation, having its office and principal place of business at Canastota, in the county of Madison, this State. Where the plaintiff resides does not appear. The venue of the action was laid in the county of New York. After issue had been joined the defendant moved to change the place of trial to the county of Madison for the convenience of witnesses.
From the moving papers it appeared that several witnesses were necessary to establish the defense set up in the defendant's answer; all of whom, from the allegations contained in such papers, resided in the county of Madison, which allegations were not denied by the plaintiff, nor did he claim that there was a witness outside of the county of Madison necessary to establish either the cause of action alleged in the complaint or the defense set up in the answer. Nevertheless, the motion was denied, as appears from the order appealed from, upon the ground that the defendant had neglected "to serve a demand to change the place of trial with or before service of the answer." No such demand was necessary. The motion was made under subdivision 3 of section 987 of the Code of Civil Procedure, and when a motion is made under this section it is not necessary to make a demand prior to the making of the motion. A demand is only necessary when the defendant demands that the place of trial be changed as a matter of right and not as a matter of discretion.
Here the cause of action arose in the county of Madison where one of the parties and every witness so far as appears reside. Under such circumstances it would seem as if the motion should have been granted. But the court did not pass upon the merits of the motion. Its decision was based upon the fact that a demand to have the place of trial changed had not been served prior to or with the answer. This was error and necessitates a reversal of the order; but, inasmuch as the court did not pass upon the merits, we think instead of granting the motion the same should be remitted to the Special Term in order that the merits may be passed upon.
Order reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term.
VAN BRUNT, P.J., INGRAHAM and LAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion remitted to the Special Term.