Moreland v. Sanford

1 Denio 660

Opinion

By. the Court, Beardsley, J.

This motion is too late; it should have been made at the April or June special term. Had it been made at either of those terms and denied, the plaintiff might have noticed the cause for trial at the late August circuit in Tompkins, which he was precluded from doing by the order to stay proceedings for this motion, made in June. The plaintiff has thus been delayed by the unexcused neglect of the defendants: for the affidavit of one of their attorneys that he ivas not aware that greater diligence was necessary, cannot be re ceived as an excuse, and this delay constitutes an insuperable obstacle to the present motion. A party sued is bound at his peril to move for a change of venue at the earliest practicable day, it his delay to a later period may have the effect of carrying the plaintiff over a circuit in the county where the venue is laid. This consequence has resulted from the delay in the present instance, and on this ground the motion is denied with costs. (Anon. 18 Wend. 514; Garlock v. Dunkle, 22 id. 615 ; 4 Hill, 63, note.)