Magee v. Beach , 149 N.Y.S. 933 ( 1914 )

Crouch, J.

Plaintiff objects to the moving papers on the ground that they do not conform to rule 48. Notwithstanding that the language of the rule itself makes no exception and that certain works on practice state in substance that the rule must be complied with whatever may be the principal ground of the motion for a change, I am of the opinion that this rule does not apply to cases where the motion is made upon the ground that the county designated for the purpose of trial is not the proper county.

Down to 1910 when rule 48 was amended the law and the practice were well settled. The amendment to the rule was not adopted at that time for the purpose of avoiding circuity and to enable one judge to pass upon the whole question but rather, as I understand, to reconcile and to make uniform the practice on motions to change the place of trial'for the reasons specified in subdivisions 2 and 3 of section 987 of the Code. Prior to that time there had existed under the decisions of different departments varying requirements as to the contents of the moving papers. The rule was intended to affect only that condition. The existing practice, circuitous and expensive as it is, can under our present system be changed only by statute.

The fact that letters were issued to plaintiff in Cayuga county does not make her a resident of that county within the meaning of section 984 of the Code. The motion is granted, with ten dollars costs.

Motion granted.