IRVING DEMBITZ, an Infant, by LEOPOLD DEMBITZ, His Guardian ad Litem, Appellant,
ORANGE COUNTY TRACTION COMPANY, Respondent. (No. 1.)
APPEAL by the plaintiff, Irving Dembitz, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of August, 1911, granting the defendant's motion for a change of venue.
Thomas J. O'Neill, for the appellant.
George E. Miner [William F. Cassedy and C. L. Waring with him on the brief], for the respondent.
This action was commenced in Westchester county on the 11th day of October, 1909. The defendant answered on the 28th day of October in the same year, and the case was tried on the 23d day of May, 1910, resulting in a verdict of $15,000 in favor of the plaintiff. The defendant's motion to set aside the verdict and to grant a new trial was granted, unless the plaintiff, within twenty days from the service of the order,
should elect to consent to a reduction of the verdict to $9,000. Both parties appealed from the order, and this court affirmed the same without opinion. (145 A.D. 931.) The trial took but one day. After the affirmance of the order by this court the defendant moved the Special Term in Orange county for a change of venue, and the hearing of this motion was, by order of the court, transferred to Westchester county, where defendant's motion was granted. The plaintiff appeals to this court.
The principal ground urged for a change of venue appears to be that neither the plaintiff nor the defendant are residents of Westchester county, and, incidentally, that all of the witnesses on both sides are residents of Orange county. Under section 984 of the Code of Civil Procedure the action should have been brought, no doubt, in Orange county or in the county of New York, assuming this to have been the actual residence of the plaintiff. But by section 985 of the Code of Civil Procedure it is provided that 'If the county designated in the complaint as the place of trial is not the proper county, the action may notwithstanding be tried therein, unless the place of trial is changed to the proper county, upon the demand of the defendant, followed by the consent of the plaintiff, or the order of the court.' Section 986 of the Code of Civil Procedure then provides that 'Where the defendant demands that the action be tried in the proper county, his attorney must serve upon the plaintiff's attorney, with the answer, or before service of the answer, a written demand accordingly. The demand must specify the county, where the defendant requires the action to be tried. If the plaintiff's attorney does not serve his written consent to the change, as proposed by the defendant, within five days after service of the demand, the defendant's attorney may, within ten days thereafter, serve notice of a motion to change the place of trial.'
It is, perhaps, too late to question the authority of McConihe v. Palmer (76 Hun, 116) that the provisions of section 986 of the Code of Civil Procedure are directory merely; that the court may, by order, direct the trial of the action in the proper county, notwithstanding the failure of the defendant to make seasonable demand for the change, though it is obvious from a
reading of the opinion in that case that it was never intended to lay down this broad proposition, but merely to hold in that particular case that the parties, by stipulation, had left the matter to be determined upon its merits. However, it is not necessary to determine how far that case is controlling here; the statute is important as laying down a rule by which we may judge of the question of laches in the defendant. 'It can hardly be doubted,' say this court in Phillips v. Tietjen (108 A.D. 9, 11), 'that in the absence of a consent and after the expiration of the period designated for the defendant's motion a motion to change the place of trial to the proper county could be denied for laches.' In the later case of Anderson v. Nassau Electric Railroad Co. (138 A.D. 816, 817) the court say: 'The Supreme Court is a court of general jurisdiction, extending over the whole State. In transitory actions parties have a right to lay the venue in any county and there have the issues disposed of if they so desire. The privilege of removal which is given to the defendant may be waived and if so waived the court of its own motion may not refuse to try the action.' This is exactly what was done in the present case. The plaintiff, residing we will assume in the city of New York, brought the action in the county of Westchester. It appears from the affidavit of defendant's counsel that 'on or about the 27th day of October, 1909, a demand, in behalf of defendant, to change the place of trial to Orange county was duly served upon plaintiff's attorney.' There is no suggestion that plaintiff's attorney consented to such change, or that the defendant moved the court to change the place of trial within ten days, or at any time thereafter. Indeed, the affidavit of counsel declares that 'No previous or prior application has been made for an order to change the place of trial of this action,' so that it affirmatively appears that from the 27th day of October, 1909, down to the trial of this action in Westchester county on the 23d day of May, 1910, no effort was made on the part of the defendant for a change of the place of trial, although from the fact that counsel swears that a demand was duly served on plaintiff's attorney for such a change on the 27th day of October, 1909, it must be assumed that the defendant had some reason for believing that it had a
right to this change. The right to demand a change of venue is based upon the fact that the plaintiff has selected the wrong county, and the defendant having made this demand, must be assumed to have made it upon the ground now urged, that the plaintiff is not a resident of the county of Westchester; at least it must have had information sufficient to have required it to use due diligence to ascertain the facts in time to have availed itself of the privilege of moving the court for the change of place of trial. But it did nothing of the kind; it went forward to trial without protest; without any suggestion, so far as appears, that the action was not properly to be tried in Westchester county, although there was practically seven months intervening between the joining of issue and the date of trial. The president of defendant company, in his affidavit in support of the motion, swears that 'deponent's said counsel, as he is informed and believes, did not know and was not informed of the foregoing facts in regard to the residence of this plaintiff and plaintiff's said witnesses until after the trial of this action,' and then gives an excuse for not moving more promptly after counsel had received this information, but this is immaterial, for the defendant's rights are fairly to be determined by what occurred prior to the trial in Westchester county in May, 1910. The declaration of Mr. Odell that 'deponent's said counsel * * * did not know and was not informed of the foregoing facts * * * until after the trial of this action,' is of no importance. The question is not what deponent's counsel knew or was told, but whether the defendant knew, or had used reasonable diligence to know, the facts, and there is nothing in the moving papers from which it can be reasonably inferred that there was such a lack of knowledge on the part of the defendant. It is true that the president of the company says that 'deponent did not ascertain ...