Goldfeder v. Greenberg

189 A.D. 184, 178 N.Y.S. 581, 1919 N.Y. App. Div. LEXIS 4624

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1919
• Status: Published

Opinion

Rich, J.:

The action was brought in Westchester county. Neither party resided there, the plaintiff being a resident of the county of Bronx and defendant residing in Kings county. Defendant served a notice under section 986 of the Code of Civil Procedure, demanding that the place of trial be changed to the county of Kings, but neglected to follow this up by serving a notice of motion to change the place of trial as provided in that section. He subsequently did serve a notice of motion to change the place of trial to the county of Kings, which was opposed upon the sole ground that it “ was not made within the time in which defendant was entitled to make said motion.” The motion was denied.

Section 986 of the Code is directory merely, and the court had power under section 987 to change the place of trial although no demand had been made. (Cronin v. Manhattan Transit Co., 124 App. Div. 543, 544.) Westchester county is not the proper county for the trial of this action. (Code Civ. Proc. § 984.) It was a mistake to bring it there, and the court is not without power to correct it. The motion ought to have been granted, and it follows that the order must be reversed.

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

Jenks, P. J., Mills, Blackmab and Kelly, JJ., concurred.

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