Spaulding v. American Wood Board Co.

5 A.D. 621

Opinion

Per Curiam:

It was not intended to express in the opinion tho view that the motion to change the place of trial was not made within the number of days allowed by the Code to serve notice of such a motion. We held, what we still think is the true rule, that as a matter of strict legal right the demand must accompany the answer, as provided by section 986 of the Code, and the answer itself must be served in time. In other words, if default has been made in answering, the subsequent service of the answer on the opening of such default or the receipt of the answer by consent of the attorney does not restore the party in default to a position where he can insist, as a matter of strict legal right, that the place of trial must he changed. Motion denied, with ten dollars costs. Present — Van Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, JJ.