Allen v. Forshay

12 Wend. 217

• Court: New York Supreme Court
• Decided: September 4, 1834
• Status: Published

Opinion

By the Court,

Sutherland, J.

The question here is, whether, when the action is local and the venue is laid in a wrong county, the court will change the venue on the application of the defendant, or leave him to the remedy given by statute to nonsuit the plaintiff at the trial. 2 R. S. 353, § 14, and 409, § 3. When it clearly appears that the action is local, and the defendant moves to change the venue, his motion ought to be granted; but when there is a dispute whether the action be or be not local, the motion to change the venue ought to be determined upon the usual grounds governing in these cases, viz. the convenience of the parties and their witnesses. Here the action, beyond all doubt, is local, and the motion is accordingly granted.