
    Charles Schaaf, Appellant, v. Edward H. Denniston and Benjamin P. Wayne, Respondents.
    Second Department,
    October 11, 1907.
    Venue — convenience of witnesses — waiver of right to change.
    Although a defendant may be entitled to a change of place of trial for convenience of witnesses, he waives that right by noticing the case for trial in the other county, by stipulating that the case be tried at certain dates, by accepting the favor of opening defaults on agreement that the case be placed on the calendar for trial at early dates, by appearing in court apparently ready for trial and by general laches.
    Under such circumstances the right to a change is waived, and the court in its discretion should not grant the change as a favor.
    Appeal by the plaintiff, Charle's Schaaf, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of February, 1907, granting the defendants’ motion to change the place of trial of the action from the county of Kings to the county of Monroe. .
    
      Henry Hoelljes, for the appellant.
    
      Clarence P. Moser [Clarence E. Shuster with him on- the brief], for the respondents.
   Hirschberg, P. J.:

The order appealed from, granting the defendants’ motion to change the place of trial of the action from the county of Kings to' the county of Monroe, appears to have been granted on the ground that the convenience of witnesses will be promoted by the change. Without detailing the circumstances attending the. making of the contract sued upon, the bringing of the action and the number and the residence of the witnesses, it may he conceded that the defend-, ants would be entitled-to a change of the place of trial had their application therefor been made in good faith.and timely; but the undisputed facts disclosed by the record are such as, in my opinion. to deprive the defendants of the right as a right to have the trial .in the county of Monroe.

The plaintiff resides in the county of Kings and brings the action as the assignor of a claim for goods sold and delivered to the defendants, who are residents of the city of Rochester. The action was brought on August 23, 1906. The defendants defaulted in pleading, but at the request of their attorney the default was opened by the plaintiff without payment of costs and an answer was accepted upon the consent and stipulation of the defendants’ attorney that lie would not oppose a motion to place the action on the preferred calendar of the court for the trial of short causes in the county of Kings. In September, 1906, the defendants served an amended answer to the complaint. In October both parties served a- notice of trial for the November term in the county of Kings, and the case was duly placed on the calendar for that term. Thereafter a notice of advancement of the trial was served on the defendants’ attorney on November tenth, asking to have the trial advanced and set down for the seventeenth day of December. On December seventeenth the case appeared on the day calendar, the defendants again made default and the case was marked for an inquest. At the request of the defendants’ attorney the plaintiff’s attorney, again opened the default without terms of any kind except the condition then agreed to by defendants’ attorney that the case should be restored to the day calendar and set down for trial in Kings county at an early date ; and pursuant thereto the case was restored to the day calendar on December nineteenth, and on that day, on the application of the defendants’ attorney, the action was again adjourned to January 7, 1907.

It further appears without dispute that on January seventh the defendants made a motion to'have the cause stricken from the day calendar on the ground that plaintiff’s assignors were not residents of Kings county, which motion was denied by the trial justice and the case marked “ ready.” On the next day the trial of the case was adjourned to February eleventh, on the application of the defendants’ attorney, because of the absence of a material witness. On that day the plaintiff was ready with all his witnesses in court to try the action. On Jan nary twenty-ninth a written stipulation was signed by both the attorneys for the plaintiff and- for the 'defendants, ád jónrhing/tiíé trial’ bf thebction' until the first'Monday of April, 1907. Tlie stipulation is entitled in Kings county and cle&ly ctiñtémplatéd a trial'there at the April’'term.

• 'The proceedings for the change of the place of trial were-instiv tilted' ‘By tlfeprocitremeiit 'of art order to'-slibw- cause,: made' ¿Fantiary tlii'r'ti&fh, on-affidavits verified respectively -On. d"ánuary twenty-ninth' ' tirid'tlnf tibtb.

By noticing the case for'trial in Kings: cbtinty; by pro'cnring the ’adjbtirriméhts; by 'stipulating that the Casó should be placed ‘on the calendar in' that bounty for trial at future dates; by accepting" the favbrbf the opening of "defaults • ’coupled in' each instance with abóüdi'tionthát the case should be placed on the calendar, of Kings cdú'My • for "trial tit early dates’; by appearing "in court"apparently 'ready'- to try tile base when readied ;■ by "applying for" a postponemenf bébanse 'of tbe absence of’ a’-witness without a suggestion that ' the "place "ivas' incóñveriieht for attendance, and • by the .general ladles indicated in the brief ’statément T have given of tlie history of thébtise, the defendants clearly lost all right to insist upon á change of véuue. Tliéy" waived" the right as’a right, and it was not the exercise "of a wise discretion to give them tlie Change as -a favor. In Tubbs v. Embree (89 Hun, 475) it"was held -that the service of ' a" ’notice for'trial’ at a ’Circuit Court by the defendant was a’waiiver x>f- the" right" to’ thereafter move to strike the cause from the Circuit cáleiidaf'áñd to place’ it lipón the ‘Spécial Térmb'álendar. In Coleman v. Hayes (92 App. Div. 575) it was held that where both-the -parties to'an action notice it for. trial'at "a term of -the court to.be .’ lield in-tlie bounty" in which the action :is brought,’and the-defendant appears at such term of court arid applies for and obtains, on the ground of the illpess of a material'witness, an adjournment 6f the -trial -until tlie taext term of court, he thereby waives his right-to inoVe tó haVe the venue changed, to another county in Order do proriiote the convenience of witnesses. I think the course Of the defendants in this case arnounted to an agreement "on their part to ■try"tlie" case-'iri Kings" county. Ho other obj'ect ‘than’such á trial Can be assumed ás the pdrpobe bf the successive notices arid s'tipula--tibns. The acceptance bf the favor in opening the d¿faults, coupled’with the condition "that "the cause should he placed on the 'Kings county’ calétidár for trial at an early date, was in effect-an agreement to try the case in that county and isa Waiver of any right as' such to compel the change of trial.

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

Woodward, Jenks, Hooker and-Miller, JJ.,-concurred.

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