Spaulding v. American Wood Board Co.

5 A.D. 620, 39 N.Y.S. 203

Opinion

Per Curiam:

If there was power and discretion in the Special Term, then upon the merits we think it was properly exercised in denying the motion. It is insisted, however, that the defendant was entitled as of right to the order changing the place of trial. A fatal objection to this claim appears in the fact that it defaulted in serving its answer, and not having made the motion in time, as prescribed by the Code of Civil Procedure (§§ 982, 983, 984, 986), the defendant was not in a position to insist, as a matter of right, that the place of trial should be changed. (Vale v. Brooklyn Cross-Town R. R. Co., 12 Civ. Proc. Rep. 103; Taylor v. Smith, 11 N. Y. Supp. 39.) We think the order was right and should be affirmed, with ten dollars costs and disbursements. Present — Van Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, JJ.