
    Isaac McConihe, App’lt, v. Charles Palmer, as Sheriff, etc., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1894.)
    
    1. Trial—Affidavit of Merit.
    Any defeat in the technical requirements of an affidavit of merits is cured, if the other affidavits in the case show a defense on the merits.
    2. Appeal—Discretionary Order.
    Order, changing the place of trial for convenience of witnesses, will not be reversed on appeal to general term, unless it clearly appears that there has been an abuse of discretion, or the special term has erred in coming to its conclusion.
    Appeal from an order of the special term changing the place of trial from the of Rensselaer to the county of Fulton.
    
      Warren McConihe, for app’lt; Ciarle L. Jordan, for resp’t.
   Mayham, P. J.

The summons and complaint in this action show upon their face that the action is prosecuted against a public officer for an alleged omission to perform an official duty as sheriff of Fulton county.

It was therefore a local action, and within the language of Section 983 of Code of Civil Procedure “ must be tried in the county where the cause of action arose,” unless the defendant has by some act or omission on his part forfeited his right to insist upon that provision of the Code.

It is true that notwithstanding this apparently mandatory provision, the action may if the county designated in the summons and complaint is not the proper county, be tried therein unless the place of trial is changed to the proper county upon a demand of the defendant followed by a consent of the plaintiff or the order of the court.

In this case,the defendant omitted to serve a demand on the plaintiff for a change of the place of trial, but that we apprehend did not deprive the court of the power when applied to, to change the place of trial to the proper county. Section 987 of the Code of Civil Procedure provides that the court may, by order,change the place of trial in either of the following cases.

1st. When the county designated for the purpose in the complaint, is not the proper county.”

It is insisted by the plaintiff that the defendant has waived his right to ask the court to change the place of trial to the proper county, by failing to serve either before, or with the answer a demand for the trial in the proper connty, as required by Section 986 of the code. But it seems that that section is directory only and not mandatory, and the court may, when satisfactory reason is presented, dispense with the making of such demand, and change the place of trial to the proper county, although no demand was made as required by that section, and after the time fixed therein for such demand, providing the motion is made with reasonable diligence. Clark v. Campbell, 54 How. 166; Gifford v. Town of Gravesend, 8 Abb. N. C. 246; Darragh v. McKim, 2 Hun, 337. See Thompson v. Heidenrich, 66 How. 391.

Although none of the cases cited discuss the precise question of the effect of a neglect to serve a demand for a change of the place of trial when the action is local, yet, they clearly recognize the power of the court to change the place of trial in that class of cases even when the defendant has failed to comply strictly with all the provisions of the Code, upon this subject so long as the plaintiff has not suffered by such failure.

In the case at bar we think, the special term might fairly have regarded the stipulations between the parties relating to this action, as a waiver by the plaintiff, of a strict compliance with all the provisions of the statute, and a consent that the action might be heard upon its merits.

It is also insisted that the defendant’s affidavits of merits on this action is defective. There would be force in this objection, if the defendant’s papers, outside of the technical affidavits of merits, did not upon their face disclose a meritorious defence.

But we think enough appears upon the face of the defendant’s papers if established by proof, and not explained away by the plaintiff, to amount to a defense upon the merits, and that any defect in the technical requirements of an affidavit of merits, is cured by the other affidavits in the case.

The motion was therefore properly granted on the ground that this being a local action and not brought in the proper county, the court might properly order it tried in the proper county on this motion. But the motion in this case was also made on the ground of the convenience of witnesses, and upon that aspect of tiiis motion, we think the special term decision must be sustained.

Motions to change the place of trial for the convenience of witnesses are largely in the discretion of the special term, and its determination of such motions will not be reversed on appeal, unless it clearly appears that there was an abuse of that discretion, or that the court erred in coming to the conclusion it did. Lane v. Town of Hancock, 29 St. Rep., 635; Schmidt v. Rochester Lithograph & Printing Co., 31 St. Rep., 258. We see no reason for the reversal of this order on either of these grounds.

Several objections are embodied in the order and urged as a reason of reversal, but we think, on the whole, sufficient was considered by the learned judge at 'special term, to enable him to reach a correct conclusion, and that his determination should be sustained.

Order affirmed with $10 costs of this motion and printing disbursements.

Putnam, J., concurs in result; Herrick, J., not acting.  