Schwartz v. Cuyler

256 A.D. 1041

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1939
• Status: Published

Opinion

— Order reversed, with ten dollars costs and disbursemnts, and motion denied, with ten dollars costs. Memorandum: The affidavits read in support of the motions to change the place of trial of these actions fail to comply with the rules governing motions of this character. (Dairymen’s League Co-Operative Assn., Inc., v. Brundo, 131 Misc. 548; affd., 228 App. Div. 748; Jacina v. Liemmi, 155 id. 397, 399.) The plaintiffs noticed these cases for trial for the April, 1938, term in Monroe county. On the application of the defendants at that and subsequent terms, trial thereof was postponed until the January, 1939, term on account of illness of one of the defendants. The defendants, when they procured these postponements, did not indicate that it would be inconvenient for them, or their witnesses, to attend upon a trial in Monroe county. By thus accepting the favor of the court and by failing to move to change the place of trial until December, 1938, the defendants have waived their right to have the place of trial changed to Wayne county and, in any event, are guilty of laches in making these motions. (Chapin v. DeGroff, 4 Cow. 554; Hoffman v. Sparling, 12 Hun, 83, 84, 85; Coleman v. Hayes, 92 App. Div. 575, 578; Perm v. New York, Ontario & Western Railway Co., 112 id. 920; Schaaf v. Denniston, 121 id. 504, 506; Jacina v. Lemmi, supra, 400; Assets Collecting Co. v. Equitable Trust Co., 168 App, Div. 145, 146; Thatcher v. Kitzing, 242 id. 640.) All concur. (The order grants a motion for change of venue.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.