Penniman v. Fuller & Warren Co.

There is no question but that, if the defendant has served its demand to change the place of trial in time, it is entitled to the granting of the motion. This action was brought to recover a sum of money on a written instrument. The place of trial in the complaint being named as Hew York county, 19 days after the service of the complaint an answer was served by mail, and 87 days thereafter the defendant served a demand that the place of trial be changed from Hew York county, where the venue was laid, on the ground that it was not the proper county, because neither of the parties resided there, and on the same day served an amended answer, and the question presented is whether this demand was served in time. Section 984 of the Code provides that an action not specified in the last two sections (of which the action in question was not one) must be tried in the county in which one of the parties resided at the commencement thereof. If neither of the parties then resided in the state it may be tried in any county which the plaintiff designates for that purpose in the title of the complaint. Section 985 reads: “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 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. In *3the case at bar no demand was served with the answer, but such a demand was served with the amended answer; and it is claimed upon the part of the plaintiff that, as the amended answer becomes the answer after it is served, such an answer comes within the spirit of the Code. We do not think, however, that this construction can be adopted. It is evidently the intention of the Code that this demand should be made either at or before the time of joining issue. Issue is joined by the service of an answer, and, although that issue may be waived by the service of an amended answer, the service of an amended answer cannot extend the time thus limited by the Code for the service of the demand. The demand must be made at or before the service of the answer, and the first answer served in the case is the one which necessarily limits the time. The issues are joined, and, as already stated, it is the evident intention of the Code that this demand should be made either at or before the joining of issue. The order should be affirmed, with $10 costs and disbursements. All concur.