Darragh v. McKim

The motion, on the decision of which the order appealed froni was made, was predicated of the practice provided by chapter 239,■ of the Laws of 1873. This was not affected by the decision madey in which it was held that so much of that chapter as provided for the extension of the jurisdiction of the courts mentioned in it, was in contravention of the Constitution of the State.* The other provisions of the chapter apply to all actions pending in the courts mentioned in it, and include those of which these courts have unquestioned jurisdiction under the statutes previously enacted upon that subject. As to those actions, it provided a mode in *338■which they might be removed into this court, and the place of trial changed, whenever the settled practice required that to be done.* And an appeal to the General Term has been secured to the party ■ defeated on the motion, of so complete a nature as to present for review all questions before the Special Term upon the hearing of the motion.† But, by the practice provided for this class of cases, no different rules have been prescribed for the disposition of the motion, than those applied by this court for the decision of the same class of motions made in actions commenced and pending therein. By those rules, a motion to change the place of trial, for any reason, is required to be made with reasonable diligence after issue has been joined in the action. If it is not, that of itself' is a sufficient reason for the denial of the motion, ‡

The issue in this action was joined on the 20th of September, 1873, and the order to show cause why the action should not be removed into this court, and the place of trial changed, was not made until the 8th of August, 1874. During that interval, it was noticed for trial, and placed on the calendar of the Superior Court, and two circuits have been held in the county of Queens, to which the defendant applied to have the place- of trial changed. This delay, together with the loss of these two circuits, at which this action could probably have been tried, if the motion had been promptly noticed and the change made, constitutes sufficient reason for its denial.

The order appealed from should be affirmed, with ten dollars costs and disbursements on the appeal to the respondent.

Davis, P. J., and Lawrence, J., concurred.

Order affirmed with costs and disbursements.