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President of the Queen's Bench Division of the Supreme Court of Judicature,] and that the said court is duly constituted and has jurisdiction in all actions, matters and proceedings in the said Division.
In witness whereof, I have hereunto set my hand and caused the Great Seal to be affixed at Westminster this day of
, 19 . [Great Seal.].
TRIAL AND JUDGMENT.
I. CHANGING PLACE OF TRIAL.
TRIAL BY THE COURT.
I. FROM AN IMPROPER TO THE PROPER COUNTY.1
FORM No. 1536.
[Title of court and cause.]
I hereby demand that the place of trial of this cause be changed to the proper county, viz., the county of 3 [Date.]
[Signature and office address of], [Address] To
Attorney for defendant.* Attorney for plaintiff.
1 This motion is matter of right. Veeder v. Baker, 83 N. Y. 156; Klei. ners v. Loeb, 64 Wis. 343, 25 N. W. Rep. 216. See, also, an extended note in 74 Am. Dec. 241. It cannot be opposed on the ground of convenience of witnesses, but plaintiff must make a subsequent motion for a change back to original county on that ground. See note 11 to Form 1539. A substituted defendant may move. Howell t. Stetefeldt Furnace Co., 69 Cal. 153, 10 Pac. Rep. 390.
If defendant does not move, the action, if transitory, cannot be stricken from the calendar by the trial judge when it appears that both parties reside in another county. Phillips v. Tietjan, 108 App. Div. 9, 95 N. Y. Supp. 469.
As to evasion by removal to United States court, see 35 Alb. L. J. 46, and Vol. I, p. 792. As to amending complaint to change place of trial, see p. 1382 of this volume; Rector v. Ridg. wood Ice Co., 38 Hun, 293; affid, without opinion, 101 N. Y. 656; Moulton v. Beecher, I Abb. N. C. 193, 235; Moss v. Gilbert, 18 id. 202; Faherty 1. Schuyler Steam Towboat Line, 43 Hun, 432.
If the summons and complaint name different counties, the complaint controls. Rector v. Ridgwood Ice Co., supra; Fisher t. Ogden, 12 App. Div. 602, 43 N. Y. Supp. lll; Tolhurst v.
Howard, 94 App. Div. 439, 88 N. Y. Supp. 235.
2 I'he service of this demand is an essential prerequisite to a motion, N. Y. Code Civ. Pro., $ 986; Vermont Central R. R. Co. v. Northern R. R. Co., 6 How. Pr. 106. It must be served with or after appearance and with or before the answer. Van Dyek v. McQuade, 18 Hun, 376; S. P., Levy v. Goldberg, 40 Wis. 308; Gill t. Bradley, 21 Minn. 15. Or with the amended answer, served within the time to amend as of course. Penniman v. Fuller, etc., Co., 133 N. Y. 442; Harmon 0. Van Ness, 56 App. Div. 163, 67 N. Y. Supp. 561. And the fact that a prior demand was served with the original answer and no motion made, does not affect. Harmon v. Van Ness, supra. Service on same day, though after answer served, is timely. Ganz . Ed. Elec. III. Co., 79 Hun, 409, 29 N. Y. Supp. 810, If default is made in serving the answer, and is thereafter opened, defendant cannot serve the demand with the answer. Spaulding v. Am. Wood Board Co., 5 App. Div. 621, 39 N. Y. Supp. 203.
3 A demand designating another than the proper county is nugatory. Beardsley v. Dickerson, 4 How. Pr. 81.
4 On à demand by one of sereral defendants being refused, all of the several defendants may move. Sherman v. Gregory, 42 How. Pr. 481.
FORM No. 1537.
Consent to change place of trial.5 [Title of court and cause.]
I hereby consent that the place of trial of this cause be changed from the county of to the county of ; and that an order to that effect may be entered without further notice.
[Sign, date, and address, as above.]
FORM No. 1538.
At a Special Term [etc., as in
Form 820, p. 1174]. [Title of cause.]
Upon reading and filing the annexed consent, and on motion of 2. T., attorney for defendant:
ORDERED, that the place of trial of this cause be, and the same hereby is changed from the county of
to the county of the latter being the proper county. Enter: [signature of judge by initials of name and title].
FORM No. 1539.
Y. Z., being duly sworn, says:
II. That the summons and complaint were served on this defendant on the
, 19 ; * and that before
5) N. Y. Code Civ. Pro., & 986. Must be served, if at all, within five days after demand.
Unless the demand is served by mail, in which event the time is doubled. Lesser v. Williams, 5 N. Y. Supp. 97; aff'd, 119 N. Y. 639.
6 See, also, Form 1550.
& N. Y. Code Civ. Pro., & 986. This motion must be made within fifteen days after demand. Or, thirty days, if the demand was served by mail. Binder v. Met. St. Ry. Co., 68 App. Div. 281, 74 N. Y. Supp. 54. After that time has passed it is not matter of right (Duche v. Buffalo Grape Sugar Co., 11 Abb. N. C. 233), but is
still within the power of the court, in furtherance of justice. McConihe r'. Palmer, 76 Hun, 116, 27 N. Y. Supp. 832.
9 Let defendant make the affidavit if practicable. Johnson v. Lynch, 15 How. Pr. 199. If by attorney or agent, state reasons. Brittan v. Peabody, 4 Hill, 61.
If the party is a corporation, any recognized officer may make the affidavit. Commercial Ins. Co. v. Mehlman, 48 Ill. 313. So may an agent whose duties include the controversy in question. Jones v. Chicago, etc., R. Ř. Co., 36 Iowa, 68.
If the party is an infant the guardian ad litem may make it.
answering, this deponent caused an appearance to be entered and the annexed demand in writing to be served [or, that with his answerto deponent caused the annexed demand in writing to be served] on the attorneys for the plaintiff on the day of
, 19, as appears by the admission of service thereon; and that the plaintiff's attorney has not consented [or, did not within five days thereinafter serve a consent] to change the place of trial, as appears by the annexed affidavit of A. T., deponent's attorney.
III. [Here state ground of right to change; see next Forms."]
IV. [If stay or ertension is asked, or oriler to show cause, state condition of the cause, see p. 1172. And if extension is asked, state as to previous extensions.]
V. [If stay or extension is asked, add oath to merits12 as in Form No. 1604, p. 1784.] [Jurat.]
[Signature.] [Votice of motion, or order to show cause; see Forms Nos. 1543 or 1546.]
Forms Nos. 1540-1542.- STATEMENTS SUITABLE TO INSERT IN FORE
Non-residence.13 That the defendant at the time of the commencement of this action resided, and now resides at
street, in the city of , in the county of , in this State. And that the plaintiff is a non-resident of this State and resides in
10 See note 2 to Form 1536.
11 If this motion is seasonably made it cannot be opposed on grounds of impartial trial or convenience of wit. nesses. Acker 1. Leland, 96 N. Y. 383; Sylvester 1. Lewis, 55 App. Div. 470, 67 N. Y. Supp. 176. The motion should be granted, and plaintiff make a subsequent motion to change the place of trial back to the original county. Id. Nor can a cross-motion on those grounds be made till after issue. Bonnell v. Esterly, 30 Wis. 549.
12 If motion is made before issue joined, the better practice is to pre.
sent the oath to merits, though it may not be essential. See Packard r. Hesterberg, 48 Misc. 30, 96 N. Y. Supp. 72. If a verified answer has been interposed, setting up affirmative facts, no affidavit of merits will be required. Iron Nat. Bank r. Dolge, 46 App. Dir. 327, 61 N. Y. Supp. 680.
13 The word “residence," as here used, means a permanent residence, as distinguished from a mere stopping place for the transaction of business or pleasure. Washington 1. Thomas, 103 Anp. Div. 423. 92 N. Y. Supp. 994. Compare Bischoff 1. Bischoff, 88 App. Div. 120, 85 N. Y. Supp. 81.