Warner v. Kenny

3 How. Pr. 323

• Court: New York Supreme Court
• Decided: December 15, 1848
• Status: Published

Opinion

Parker, Justice.

I think the proceedings are irregular. The Plaintiff having designated, in his complaint, the county of Ulster as the place for trial, ought to have given notice in his summons that he would apply at the next Ulster circuit for the relief demanded in his complaint. Ulster is the county for trial, whether there be an issue joined or judgment be taken on failure to answer. In the latter case, it may be necessary to bring witnesses before the court to show the amount of damage the Plaintiff has sustained; and the Defendant has a right to appear on assessing the damages, to mitigate the amount, as he had formerly on executing a writ- of inquiry. He can not be compelled to come to Albany to do this, when the venue is in Ulster. The Plaintiff’s attorney may withdraw the papers and serve them on the Defendant after they shall have been properly amended.