Sylvester v. Lewis

Full title: JOHN A. SYLVESTER, Respondent, v . RAY B. LEWIS, Appellant

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 1, 1900

55 App. Div. 470 (N.Y. App. Div. 1900)

67 N.Y.S. 176

Opinion

November Term, 1900.

George H. Bunce, for the appellant.

J.W. Watts, for the respondent.

LAUGHLIN, J.:

The action is brought to recover moneys alleged to have been loaned by plaintiff to defendant. The answer contains a general denial as to part of plaintiff's cause of action and interposes a counterclaim for the value of services alleged to have been rendered plaintiff by defendant. The action, therefore, does not fall within either sections 982 or 983 of the Code of Civil Procedure. Both parties reside in the county of Herkimer, and under section 984 of the Code of Civil Procedure that is the proper place for the trial of the issues. Oneida county is designated in the complaint as the place of trial. Defendant with his answer served a demand that the place of trial be changed to Herkimer, the proper county. Plaintiff having failed to consent to such change defendant duly made a motion to change the place of trial in accordance with said demand. Plaintiff was permitted, in opposition to defendant's motion, to read affidavits showing that the convenience of witnesses required that the place of trial be retained in Oneida county and the court denied defendant's motion upon that ground. This was error. The proper orderly practice in such cases is to grant the order changing the place of trial to the proper county. Plaintiff could then have made a motion to change the place of trial back to Oneida county for the convenience of witnesses, and this would have given defendant an opportunity to meet the moving affidavits which he could not have under the practice adopted in this case excepting by the special favor of the court in granting a postponement of the hearing. ( Veeder v. Baker, 83 N.Y. 156; Acker v. Leland, 96 id. 386, 387; Stimson v. Stimson, 29 N Y St. Repr. 21; Hubbard v. National Protection Ins. Co., 11 How. Pr. 149; International Life Assur. Co. v. Sweetland, 14 Abb. Pr. 240; Park v. Carnley, 7 How. Pr. 355; People v. Kingsley, 8 Hun, 233; Gifford v. Town of Gravesend, 8 Abb. N.C. 246.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted with, ten dollars costs.