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[show deponent's means of knowledge; or his information, disclosing sources. ]14
FORM No. 1541.
Corporation.15 That as appears from the allegations of the complaint, plaintiff is a foreign corporation, created by or under the laws of the State of , and is engaged in business at
, in that State, where its principal office is located.
FORM No. 1542.
Local action.16 That the action is brought [state subject of action; for instance, thus:] by the plaintiff as owner of certain real estate situate in the village of , and county of , to restrain this defendant from erecting a bridge across a highway in said village, and thereby connecting certain buildings owned and occupied by said defendant as a hotel, situate upon the real estate of defendant, and situate on each side of said highway, and is for the determination of the rights of the respective parties in and to such high way, and the extent of their interest in the real estate constituting said highway, and adjacent thereto, as by reference to said complaint will more fully appear.
14 Allegations as to plaintiff's resi. dence may be set forth on informa tion and belief, if the sources are stated. And they will prevail over erasive denials or statements by the plaintiff or his attorney. See Boyle 0. Standard Oil Co., 102 App. Div. 622, 92 N. Y. Supp. 677.
15 A foreign corporation is a nonresident within the statute. A domestic corporation is a resident of the county wherein its principal place of business is located, unless it is a railroad corporation with lines extending into different counties. As to foreign corporations, see International Life Assur. Co. 1. Sweetland, 14 Abb. Pr. 240. See, also, note in 8 Anno. Cas. 261. As to domestic corporation, see Speare r. Troy Laundry Mach. Co., 44 App. Div. 389, 60 N. Y. Supp. 1080; Duche r. Buffalo Grape Sugar Co., 11 Abb. V. C. 233. As to railroad cor. poration, having its line in different counties, see Poland 1. United Traction Co., 88 App. Div. 281, 85 N. Y. Supp. 7; aff'd, on opinion below, 177 N. Y. 557.
An action against a city of the second class must, if transitory, co
brought in the county where the city is located. Cznamowsky v. Rochester, 55 App. Div. 388, 66 N. Y. Supp. 931.
16 Barnes 1. Barnhardt, 102 App. Div. 424, 92 N. Y. Supp. 459; Litchfield v. Inter. Paper Co., 41 App. Div. 446, 58 N. Y. Supp. 856; Leland v. Hathorn, 42 N. Y. 547; Roche v. Marvin, 92 id. 398; Acker v. Leland, 96 id. 383; Wyatt v. Brooks, 42 Hun, 502; Moss v. Gilbert, 18 Abb. N. C. 202; Yates County Nat. Bank of Penn Yan v. Blake, 43 Hun, 162; N. Y. Code Civ. Pro., $ 982. As to penal actions, see Ithaca Fire Dept. v. Beecher, 99 N. Y. 429; Leonard v. Ehrich, 40 Hun, 460; Taylor . Attrill, 31 id. 132. Action against director of corporation for false report is no longer penal. Hutchinson r. Young. 80 App. Div. 246, 80 N. Y. Supp. 259.
If an action is begun in a Justice's Court, and discontinued upon the title to realty coming into question, the new action, under Code Civ. Pro., $ 2953, begun in that county cannot be removed as matter of right; although the real property lies in another county. Eaton 1. Hall, 78 AppDiv. 542, 79 N. Y. Supp. 887.
FORM No. 1543.
Notice of motion to change place of trial,17 [Title of court and action.]
Please take notice, that on the annexed affidavits of Y. Z., the defendant, and B. X., his attorney, verified the day of
, 19, and upon the complaint (or, the pleadings] in this action, and the demand to change the place of trial heretofore served on you, the undersigned will move this court, at a Special Term thereof to be held at18 , on the day of , 19 , at o'clock in the forenoon of said day, that the place of trial in this action be changed from the county of
to the proper county, viz., the county of
[designating it), and for such other and further relief as may be just,19 with the costs of this motion.20 [Date.]
[Signature and office address of], [Address] To
Defendant's attorney. Plaintiff's attorney.
[Also to co-defendants not joining.] [For affidavit to oppose, see Form 1547; order, see Form, 1548.]
17 Motion is necessary to enforce the demand, if consent be not given. Vermont Central R. R. Co. v. Northern R. R. Co., 6 How. Pr. 106. See note 2 to Form 1539, as to time to make motion.
If the motion is based on the ground that the county named is not the proper county, a defendant may move without notice to a co-defendant who has not appeared. North Shore Ind. Co. 15. Randall, 108 App. Div. 232, 95 N. Y. Supp. 758.
If the application is on a discretionary ground, all the defendants should unite in making the motion (Sailly ư. Hutton, 6 Wend. 508; Legg v. Dorsheim, 19 id. 700), or consent to the change unless good reason is shown for their not joining (Bergman 1'. Noble, 10 Civ, Pro, Rep. 190), as for instance, that those who do not join have suffered a default (Chace v. Benham, 12 Wend. 200; Welling v. Sweet, 1 How. Pr. 156), or unless their liability is several as in the case of maker and indorser, in which case either may move (Sherman v. Greg
ory, 42 How. Pr. 481). If the action be in form against several, and process has been served upon part only, the motion may be made by the latter. Brittan v. Peabody, 4 Hill, 61, note, subd 2.
Where all do not unite, notice of the motion should be given to those who do not. Sherman v. Adiron. R. R. Co., 92 Hun, 39, 36 N. Y. Supp. 692; Mairs . Remsen, 3 Code Rep. 138. The motion may stand over to allow such notice to be given. Id.
18 As to place of moving, see Form 1546, note 42, and Vol. I, p. 101, ete.
19 See Vol. I, p. 151.
20 If a notice of motion to change venue on discretionary grounds asks for costs absolutely, on granting it, costs will be allowed plaintiff for ap. pearing merely to object to costs. Phelps v. Wasson, 2 How. Pr. 126. But this rule should not apply after demand disregarded, and plaintiff should be charged with costs. Hub bard v. Nat. Prot. Ins. Co., 1l How. Pr. 149.
II.- CHANGE ON DISCRETIONARY GROUNDS.21
FORM No. 1544. Affidavit to move to change place of trial because impartial trial cannot
be had.22 [As in Form 1539 to the *.]
III. That this action is brought to recover [here state the nature of the cause of action, e. g.:] damages for an alleged libel upon the plaintiff, published in the , and at in the county of M., of which the defendant is charged with being the author.
IV. That an impartial trial cannot be had in the county of M., the county designated in the complaint as the place of trial of this action, as this deponent verily believes, the grounds of which belief are as follows [setting forth in detail the circumstances, with corroborating affidavits].53
V. [If stay or extension is asked, or order to show cause, state condition of the cause, see p. 1172; and if stay is asked, show diligence,24 and if extension is asked, state as to previous extensions.]
VI. [Add oath to merits; 25 see p. 1741, Form 1554.] [Jurat.]
21 Under the discretionary power conferred by N. Y. Code Civ. Pro.,
987, to change the place of trial in order to secure impartial trial, the convenience of witnesses or the ends of justice, the court may send the cause to a county which under the previous provisions of the statute would not be the proper county. Herbert r. Griffith, 2 App. Div. 566, 37 N. Y. Supp. 1098; Hausmann v. Jloore, 7 App. Div. 459, 39 N. Y. Supp. 1089; Gorman v. South Boston Iron Co., 32 Hun, 71.
22 N. Y. Code Civ. Pro., $ 987, subd. 2. See Moulton v. Beecher, 1 Abb. N. C. 193; Stoddard v. D. & H. R. R. Co., 42 N. Y. St, Rep. 73, 16 N. Y. Supp. 621; Weiant v. Rockland, etc., Rock Co., 74 App. Div. 24, 76 N. Y. Supp. 699, 11 Anno. Cas. 113. See, as to rulings in criminal cases. People 1. Jackson, 114 App. Div. 697; People 1. Georger, 109 App. Div. 111, 95 N. Y. Supp. 790; People 1. Diamond, 36 Misc. 71, 72 N. Y. Supp. 179.
23 The affidavit should state in detail facts and circumstances which induce the belief that an impartial trial cannot be had, in order that the court may judge whether the belief is well founded; it is not enough to present the affidavits of individuals, however respectable, to their belief that an impartial trial cannot be had. Archer v. McIlvray, 86 App. Div. 512, 83 N. Y. Supp. 727; Bowman v. Ely, 2 Wend. 250; People 1. Bodine, 7 Hill, 147; People v. Vermilyea, 7 Cow. 108, 137; Scott u. Gibbs, 2 Johns. Cas. 116. Contra, Taylor v. Gardiner, 11 R. I. 182.
A boast by one of the parties, or his agent, may be considered. Tuomey 1". Kingsford, 68 App. Div. 180, 74 N Y. Supp. 13.
it is not now required that an actual effort should be first made to impanel a jury. See cases in note 22, supra.
24 If stay is asked, the papers must show that the defendant has used due
FORM No. 1545. Affidavit to change place of trial for convenience of witnesses, 26 [Title of court and action.] [Venue.]
Y. Z., being duly sworn, says:
I. That he is the defendant [or, the attorneyz? for the defend ant] above named.
II. That the summons and complaint in this action were served on this defendant on the day of , 19 ; and that issue was joined herein by the service of this defendant's answer [or, by the service of the plaintiff's reply], on the day of
, 19 . III. [State place where cause of action28 arose, as thus:] That this action is brought to recover for iron sold and delivered by the plaintiff to the defendant; and the defense is a breach of
diligence in preparing the motion for the earliest practicable day after issue joined. N. Y. Gen. Rule No. 48.
Unfavorable press comments are not necessarily sufficient, even in criminal cases. See People v. Sarvis, 69 App. Div. 604, 74 N. Y. Supp. 1067. Com pare People v. Jackson, 114 App. Div. 697.
21 A verified answer, setting up affirmative defenses, may be accepted in lieu of an affidavit of merits. See Iron Nat. Bank v. Dolge, 46 App. Div. 327, 61 N. Y. Supp. 680.
26 N. Y. Code Civ. Pro., § 987, subd. 3. The convenience of witnesses and the ends of justice must be promoted. Tuomey v. Kingsford, 68 App. Div. 180, 74 N. Y. Supp. 13.
This motion must be made with reasonable diligence after an issue of fact is joined. Haines 0. Reynolds, 95 App. Div. 275, 88 N. Y. Supp. 589; Darragh v. McKim, 2 Hun, 337 (hold. ing eleven months' delay fatal); Becker v. Town of Cherry Creek, 77 Hun, ll, 28 N. Y. Supp. 279 (id., al though previous time had been expended in motion to change on another ground, and appeals from its denial).
All the defendants should join in
the application, or some reason be
And a defendant not joining should
It cannot be made before issue of iact. Moore r. Pillsbury, 43 How. Pr. 142 (denying the motion pending demurrer).
Convenience of the party, or of expert witnesses, is not to be considered. Hedges r. Bemis, 38 App. Div. 349, 56 N. Y. Supp. 566; Bushnell v. Durant, 83 Hun, 32, 31 N. Y. Supp. 608; Groff v. Rome Met. Bedstead Co., 98 App. Div. 152, 90 N, Y. Supp. 691. Compare Tuthill t. L. I. R. R. Co., 75 Hun, 556, 26 N. Y. Supp. 1029.
A n action will not be transferred from an adjoining county to New York county, for this ground alone, Hirstkind v. Mayer, 91 App. Div. 416, 86 N. Y. Supp. 836.
2 7 The affidavit should always be made by the party if practicable; if made by attorney, state reason. Scott v. Gibbs, 2 Johns. Cas. 116.
For other rules, see note 9 to Form 1539.
28 The place of the transactions
warranty in said sale; that said breach consisted in the unfitness of said iron for the purposes for which it was sold and warranted by the plaintiff, for use in defendant's factory in said town of
; that the sale and warranty were made in said town by plaintiff's agent, and the use of the said iron was attempted by defendant and its unfitness ascertained at his said factory there.
[Or, if the action is for libel after stating character and defense. That there is no allegation that said libel was published outside of the county of , wherein said paper is printed.]29
IV. [Oath to merits as in Form 1604, p. 1784.]30
V. That the next trial term in the county of
[place of trial named by plaintiff], is appointed to be held on the
next. That the next trial term in county [to which it is desired to remove the cause]31 is appointed to be held at on the day of next.]32
That there has been no trial term in either county at which this cause could be noticed for trial since issue was joined as aforesaid.33
VI. That this defendant has fully and fairly stated to his counsel, T. X., who resides at
in the county of the facts which he expects to prove by each and every one of the following witnesses, viz., J. L., E. F., G. H., and J. K.; that each
should always be stated and is a mate rial consideration. Lewis Co. v. Pheenix Cap Co., 115 App. Div. 188; Groff 1. Rome Met. Bedstead Co., supra; Laroque v. Conhaim, 45 Misc. 234, 92 N. Y. Supp. 99, and cases cited; N. Y. Gen. Rule No. 48. It will be a controlling consideration when the wit. nesses are equal. Bell r. Whitehead Bros. Co., 5 App. Div. 555, 39 N. Y. Supp. 434.
20 An action for libel should be tried in the county where the newspaper is published and circulated. McCormac 1. Tobey, 109 App. Div. 581, 96 N. Y. Supp. 302
30 See State Bank of Syracuse v. Gill, 23 Hun, 406; Laroque v. Conhaim, supra. Or state that affidavit
of merits has been served and filed. N. Y. Gen. Rule No. 23.
31 See note 21 to Form 1544.
32 The congested condition of the calendar may be considered. Kavanaugh v. Merc. Trust Co., 94 App. Div. 575, 88 N. Y. Supp. 113; Archer v. McIlravy, 86 App. Div. 512, 83 N. Y. Supp. 727. It is hardly applicable, however, upon a motion to change from Erie to New York county. Osterhout v. Rabe, 39 App. Div. 413, 57 N. Y. Supp. 336.
A county adjacent to New York county will not be selected to obviate this objection, except under most un. usual circumstances. Kavanaugh r'. Merc. Trust Co., supra.
33 If there has been delay, excuse must be alleged. See note 26, p. 1730.