
    George Ganz, Respondent, v. The Edison Electric Illuminating Company of New York, Appellant.
    
      Demand for a change of venue — when served in time — when one of right — fractions of a dag not noticed by the courts.
    
    The general rule is that a court will not divide a day into fractions except for the purpose of guarding against injustice, and where a demand for a change of the place of trial of an action was not served until some hours after the service of the answer therein, hut was served upon the same day, the motion to change the place of trial will not be denied on that account, where the county in which the action was brought was not the proper county.
    The application for a change of the place of trial of an action from the county in which the action was brought, wherein none of the parties thereto resided, to the proper county, if the demand for the change of the place of trial be served in time, is one of right.
    Appeal by the defendant, The Edison Electric Illuminating Company of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of February, 1894, denying the defendant’s motion to change the place of trial, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 5th day of February, 1894, substantially to the same effect.
    
      Arthur P. Itodghins, for the appellant.
    
      Oantor & Van SohaioTc, for the respondent.
   Cullen, J.: .

This is an appeal from an order denying defendant’s motion to change the place of trial. • The venue was laid in Westchester county, and the application was based on the ground that such was not the proper county, neither party residing therein. The facts were conceded, but the motion was resisted on the ground that the demand for change of place of trial was not served till some hours after the service of the answer though served upon the same day.

We think that the demand was served in time. The general rule is that the court will not divide a day into fractions except for the purpose of guarding against injustice. (Blydensburgh v. Cotheal, 5 How. Pr. 200 ; Jones v. Porter, 6 id. 286; Clute v. Clute, 4 Den. 243; Small v. McChesney, 3 Cow. 19.) “Where the ends of justice do not demand it the court will not inquire at what particular hour the process, pleadings or notices in a cause were served.” (Rogers v. Beach, 18 Wend. 533.) As the demand was served in time the application was one of right.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.

Brown, P. J., concurred; Dykman, J., not sitting.

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