Granger v. Sheble

application to change the place of trial was predicated of section 319 of the Code, which declares what •sections shall be applicable to the proceedings contemplated. *131It appears that this action was commenced on the 18th of March, 1884; issue was joined on the twenty-fourth of April following, and a motion to change the place of trial to the second district noticed for the twenty-sixth of April, and argued on the fifth of May.

The learned justice in the court below denied the motion on the ground that it was too late.. We think this was a misapprehension of the provisions of the Code relative to applications kindred to this. The section already mentioned declares that the application may be made by an order at any time after the joinder of an issue of fact and before the trial thereof, and does not require in express terms or by implication that any demand should be made for a change of place of trial prior to the notice of application. Whether the order should be granted or not is purely a matter of discretion (Cornell agt. Evans, 7 Hun, 299).

It seems that the learned justice in the court below did not examine the case upon its merits, and, therefore, the element of discretion was not called into requisition. For these reasons we think that the order should be reversed with leave to renew the motion on its merits. It is proper to suggest that in this and all similar applications something more is required to be shown than the mere fact that the defendant is not a resident of the county where the action is brought.

Order reversed, with ten dollars costs and disbursements.