
    George Penniman, Resp’t, v. The Fuller & Warren, Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1892.)
    
    Venue—Chanse of—When demand must be served.
    A demand for a change of the place of trial may be served with an amended answer.
    Appeal from judgment of the supreme court, general term, first department, affirming an order denying motion to change place of trial.
    
      A ibert Smith, for app’lt; Charles H. Mahony, for resp’t.
    
      
       Reversing 43 St. Rep., 796.
    
   Maynard, J.

The place of trial of this action was not laid in the proper county. The plaintiff was a resident of Kings and the defendant of Bensselaer county. The summons and complaint both state that the trial is desired in New York county. With an amended answer the defendant demanded that the trial be had in the county of Bensselaer, naming it as the proper county. The demand was not complied with, and the defendant then moved to change the place of trial to Bensselaer, which was denied, upon the ground that the demand was not served in time; that it should have been served before the original answer was served, or at the time of serving it.

In so balding we think the court below erred. The defendant had a right to serve an amended answer, as of course, and when so served it became the answer in the action and superseded all his former pleadings. Seneca Co. Bk. v. Garlinghouse, 4 How., 174; Fry v. Bennett, 3 Bosw., 200; Dann v. Baker, 12 How., 521; Sands v. Calkins, 30 id., 1; Elizabethport Man'fg. Co. v. Campbell, 13 Abb. Pr., 86; Figg v. Edwards, 20 Hun, 90.

It was not an amendment of the original answer. It was a new pleading. The defendant had an absolute right to interpose it, and the service, with it, of a demand to change the place of trial would seem to be a substantial compliance with the requirement of the Code. The mode of procedure to be observed, as a condition precedent to the exercise by the defendant of bis right to have the place of trial changed, evidently had in view the date of joining issue by the service of the answer in the usual and orderly manner of pleading, as the limit of time beyond which a demand would be ineffectual. So long as the defendant has within his control the shaping of the issues upon which the trial of the action is to be had, he may avail himself of the privilege of the statute and elect whether he will go to trial in the county where the venue is laid, or compel his adversary to transfer the cause to the proper county to be selected by him. We agree with the general term that the demand should be made at, or before, the time of joining issue; but where an amended answer is served in due season, that time is fixed by such service. Until then the issues are transitory and not definitely known or determined. It might be that upon the issues framed by the original answer it would be a matter of indifference to the defendant in what county the action should be tried; but with the service of an amended answer an entirely new case might be presented for trial, which he might deem important to have tried in the proper county. The case of Veeder v. Baker, 83 N. Y., 156, is authority for the position that the service of an answer does not necessarily limit the time in which a demand may be made, if another answer is served under the provisions of the Code authorizing the service of pleadings as of course. There the defendant had, with his original answer, served a demand and made a motion to change the place of trial, which had been denied. The plaintiff served an amended complaint, to which the defendant interposed an answer and made another demand and a second motion to change the place of trial, in accordance with it, which was granted.

The just rule would seem to be that the defendant may retain the right to insist that the trial shall be had in the proper county until he has, by his own act, defined the issues to be tiled, when, the right is gone, unless he has put the plaintiff in default by the service of the prescribed demand. While it will not be presumed that the defendant intends to serve an amended answer, yet the. right exists, and, if availed of, it becomes the answer of the defendant in the action; and it would be contrary to the liberal rule of construction, which the Code requires to be adopted in applying its provisions, to de¡Drive him of a privilege which it is expressly stated may be exercised at the time of the service “ of the answer.”

The plaintiff cannot be seriously prejudiced. If the amended answer has been served for the purpose of delay it may be stricken out on motion, and with it would fall whatever incidents and privileges the defendant would otherwise have derived from it. Section 984 of the Code provides that an action of this character must be tried in the county in which one of the parties resided at the commencement thereof. The plaintiff has deliberately disregarded this requirement It is true that a subsequent section permits the action to be tried in the wrong county, unless the defendant makes the demand and follows it with a motion, if not promptly complied with ; but a technical construction should not be invoked to aid the plaintiff in his effort to avoid the applica. tian of the statute.

The orders of the general and special terms should be reversed, with costs, and the motion to change the place of trial granted, with costs.

All concur.  