Sylvester v. Lewis

Appellate Division of the Supreme Court of New York

Sylvester v. Lewis

55 A.D. 470, 67 N.Y.S. 176

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1900

StatusPublished

Cited by4 cases

This text of 55 A.D. 470 (Sylvester v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sylvester v. Lewis, 55 A.D. 470, 67 N.Y.S. 176 (N.Y. Ct. App. 1900).

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Opinion

Laughlin, J.:

• The action is brought to recover moneys alleged to have been loaned by plaintiff to defendant. The answer contains a general denial as to part of plaintiff’s - cause of action and interposes a counterclaim for the value of services alleged to have been rendered plaintiff by defendant. The action, therefore, does not fall within either sections 9S2 or 983 of the Code of Civil Procedure. Both parties reside in the county of’ Herkimer, and under section 984 of the Code of Civil Procedure that is the proper place for the trial of the issues. Oneida county is designated in the complaint as the place of trial. Defendant with his answer served a demand that the place of trial be changed to Herkimer, the proper county. Plaintiff having failed to consent to such change defendant duly made a motion td change the -place of trial in accordance with said demand. Plaintiff [471]*471was permitted, in opposition to defendant's motion, to read affidavits showing that the convenience of witnesses required that the place of trial be retained in Oneida county and the court denied defendant’s motion upon that ground. This was error. The proper orderly practice in such cases is to grant the order changing the place of trial to the proper county. Plaintiff could then have made a motion to change the place of trial back to Oneida county for the convenience of witnesses, and this would have given defendant an opportunity to meet the moving affidavits which he could not have under the practice adopted in this case excepting by the special favor of the court in granting a postponement of the hearing. ( Veeder v. Baker, 83 N. Y. 156; Acker v. Leland, 96 id. 386, 387; Stimson v. Stimson, 29 N. Y. St. Repr. 21; Hubbard v. National Protection Ins. Co., 11 How. Pr. 149 ; International Life Assur. Co. v. Sweetland, 14 Abb. Pr. 240; Park v. Carnley, 7 How. Pr. 355; People v. Kingsley, 8 Hun, 233; Gifford v. Town of Gravesend, 8 Abb. N. C. 246.)

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

All concurred.

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

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Laughlin, J.:

• The action is brought to recover moneys alleged to have been loaned by plaintiff to defendant. The answer contains a general denial as to part of plaintiff’s - cause of action and interposes a counterclaim for the value of services alleged to have been rendered plaintiff by defendant. The action, therefore, does not fall within either sections 9S2 or 983 of the Code of Civil Procedure. Both parties reside in the county of’ Herkimer, and under section 984 of the Code of Civil Procedure that is the proper place for the trial of the issues. Oneida county is designated in the complaint as the place of trial. Defendant with his answer served a demand that the place of trial be changed to Herkimer, the proper county. Plaintiff having failed to consent to such change defendant duly made a motion td change the -place of trial in accordance with said demand. Plaintiff [471]*471was permitted, in opposition to defendant's motion, to read affidavits showing that the convenience of witnesses required that the place of trial be retained in Oneida county and the court denied defendant’s motion upon that ground. This was error. The proper orderly practice in such cases is to grant the order changing the place of trial to the proper county. Plaintiff could then have made a motion to change the place of trial back to Oneida county for the convenience of witnesses, and this would have given defendant an opportunity to meet the moving affidavits which he could not have under the practice adopted in this case excepting by the special favor of the court in granting a postponement of the hearing. ( Veeder v. Baker, 83 N. Y. 156; Acker v. Leland, 96 id. 386, 387; Stimson v. Stimson, 29 N. Y. St. Repr. 21; Hubbard v. National Protection Ins. Co., 11 How. Pr. 149 ; International Life Assur. Co. v. Sweetland, 14 Abb. Pr. 240; Park v. Carnley, 7 How. Pr. 355; People v. Kingsley, 8 Hun, 233; Gifford v. Town of Gravesend, 8 Abb. N. C. 246.)

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

All concurred.

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

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55 A.D. 470, 67 N.Y.S. 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sylvester-v-lewis-nyappdiv-1900.

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