New York Supreme Court, 1879

Van Dyck v. McQuade

New York Supreme Court · Decided July 15, 1879 · Babnard, Dyeman, Gilbert

25 N.Y. Sup. Ct. 376

Counsel

Alex. Thain, for the appellant., Ely & Smith, for the respondent.

Opinion of the Court

Gilbert, J.:

It is not necessary in this case to decide whether the place of trial was located in the proper comity, for the reason that prior to the motion to change the place of trial no demand was made in accordance with the “Code of Civil Procedure.”

Such a motion can only be entertained after a demand, as prescribed by section 986 of said Code, and such demand must be made by an attorney who has appeared in the action.

Section 421 prescribes that an appearance must be made by the service of a notice of appearance or a copy of demurrer or answer.

No such appearance having been made there was no attorney competent to make the demand.

Order affirmed, with costs.

Present — BabNARd, P. J., Gilbert and DyemaN, JJ.

Order affirmed, with costs and disbursements.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.