Toll v. Cromwell
New York Supreme Court
Motion to -change the venue. This action was brought upon a note made by the defendant, payable to the plaintiff’s assignors. The plaintiff resides in the county of Schenectady, and the defendant in the county of Schoharie. The venue was in the county of Albany. The defendant’s attorney, in due time, served upon the plaintiff’s attorneys a demand, that the trial be had in the proper county.
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Motion to -change the venue. This action was brought upon a note made by the defendant, payable to the plaintiff’s assignors. The plaintiff resides in the county of Schenectady, and the defendant in the county of Schoharie. The venue was in the county of Albany. The defendant’s attorney, in due time, served upon the plaintiff’s attorneys a demand, that the trial be had in the proper county. After the service of such demand, the defendant put in his answer, alleging, in substance, that the note upon which the action was brought had been obtained fraudulently. Upon an affidavit stating these…
1Opinion of the Court
Harris, Justice.
The defendant, at the time he gave notice ef this motion, was entitled to move upon two grounds. He had demanded that the venue be changed to the proper county, and the plaintiff had not tendered a consent that it should thus he changed. He was, therefore, entitled to move under the first subdivision of the 126th section of the Code. The cause, too, was at issue; and his affidavit showed that the convenience of witnesses required that the venue should be changed. This entitled him to move under the third subdivision of the same section.
But, after the notice of the motion was…
2Cited by2 opinions
- Moulton v. BeecherNew York Supreme Court · 1876
- McCosker v. SmithNew York Supreme Court · 1891