Lynch v. Mosher
New York Supreme Court
—Motion, to change the place of trial from Erie to Rensselaer county. The summons and complaint in this cause were served on the 8th day of May, 1849. The defendant’s answer was served on' the 23d of May. On the 9th day of June, the plaintiff served a demurrer to a part of the answer, and on the 12th day of June a reply to the residue was served.
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—Motion, to change the place of trial from Erie to Rensselaer county. The summons and complaint in this cause were served on the 8th day of May, 1849. The defendant’s answer was served on' the 23d of May. On the 9th day of June, the plaintiff served a demurrer to a part of the answer, and on the 12th day of June a reply to the residue was served. Notice of this motion with an order staying proceedings were served on the 3d day of July, for the special term to be held on the third Monday of July, instant, in Erie county. A general term of this court was held in Erie county on the 18th day of…
1Opinion of the Court
1. The defendant was bound, before issue joined, to have demanded in writing that the trial should be had in Rensselaer county. (Code, section 126.)
2. The defendant was bound to have given notice of his motion before issue joined. By the delay the plaintiff has lost a circuit.
8. The affidavit is defective as to the merits and as to the materiality of the witnesses. It states that the defendant believes his counsel has advised him truly on these subjects, and does not state that he believes he has a defence on the merits, nor that he believes his witnesses to be material.
Sill, Justice.—The…
2Cases cited1 opinion
- Chapin v. De GroffNew York Supreme Court · 1825
3Cited by2 opinions
- Page Belting Co. v. JosephNew York Supreme Court · 1928
- Mitchell v. BarnesNew York Supreme Court · 1880