Coleman v. Hayes

Full title: JOHN E. COLEMAN, Appellant, v . CHARLES F. HAYES, Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 1, 1904

92 App. Div. 575 (N.Y. App. Div. 1904)

87 N.Y.S. 12

Opinion

March, 1904.

Lyman J. Baskin, for the appellant.

Monroe Wheeler, for the respondent.

McLENNAN, P.J.:

The sole question presented upon this review, requiring serious consideration, is whether the defendant, by serving his notice of trial for the December Trial Term in 1902 to be held in the county of Yates, and by appearing at such term and applying for and receiving the advantage of a postponement of the trial beyond that term of court, waived his right to move the court subsequently for a change of venue to another county.

In the case of Haiz v. Starin (1 N.Y. St. Repr. 553), which was an action brought in the wrong county, and to the removal of which to the proper county the defendant was entitled as a matter of right unless such right had been waived, the court said: "The receipt of the extension of time, subject to stipulation by defendant to take short notice of trial for the March circuit in Westchester, was a waiver of the right to change the place of trial to the proper county. The defendant accepted a benefit from the plaintiff under an agreement that he would try the case in Westchester county. After receiving the advantage of a stipulation it was too late, and against good conscience, to repudiate the consideration."

In Nash v. Silver Lake Ice Co. (6 N.Y. Supp. 913) the defendant applied for three extensions of time to answer, which were granted. A motion by the plaintiff to shorten the time of the defendant to answer was denied, upon defendant stipulating to "accept short notice of trial at the May term of this court" and to "apply for no further extension of time to answer." Upon a subsequent motion by the defendant for the removal of the cause to the proper county it was held that by accepting the denial of plaintiff's motion, and stipulating to accept short notice of trial for a specified term in the county wherein the venue rested, the defendant waived its right to have the same removed to another county, even although otherwise it would have been entitled to such removal as a matter of right. ( Rodie v. Verdon, 22 Misc. Rep. 409.)

It seems to us that the grounds upon which the decisions in the cases cited were based were sound and equitable, and in principle apply to the case at bar.

The defendant's notice of trial advised the plaintiff that he expected to try the cause at the December term. It in terms said: "The above cause will be brought to trial at the next trial term of this court, appointed to be held in and for the county of Yates, at the Court House in the village of Penn Yan on the 1st day of December, 1902."

And acting upon that notice the plaintiff prepared for the trial at that term.

Under the circumstances of this case we think it should be held that the service of the notice of trial, and the motion for a postponement of the trial upon the ground of the illness of a material witness for the defense, constituted a waiver of the defendant's right to afterwards move for a change of venue. The application for the postponement was in harmony with the evident intention of the defendant to try the cause in Yates county, and "good conscience" should prevent his being permitted to secure an advantage for which he apparently was willing to pay by way of costs the sum of twenty dollars, and then attempt to "repudiate the consideration" to the prejudice of the plaintiff, by a subsequent motion to change the place of trial.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.