Philbrick v. Boyd , 16 Abb. Pr. 393 ( 1863 )

Peckham, J.

It is insisted by defendant’s counsel that the stipulation served by plaintiff did not operate to change the place of trial, as it did not comply with the defendant’s demand to change to Monroe. It was properly made to change to the proper county, and then it suggested that the proper county was Monroe. The latter portion is a mere suggestion, or matter of advice, no part of the demand. In the same demand it was also suggested that the transaction arose in Monroe, and that all the witnesses resided there. All this was quite immaterial, as it would have been to suggest that the plaintiff had no cause of action. The defendant can scarcely contend otherwise,—as, if the construction he now seeks to make was the true one, his demand was wholly irregular. The demand then was right to change to the proper county. The demand was complied with by the plaintiff by changing to Washington by stipulation, where, it is stated by both sides in the affidavits on this motion, the plaintiff resided. There was the proper county, and it was changed there “by consent of parties,” under these circumstances. (Code, § 126.)

If there was any informality in plaintiff’s stipulation, that was waived by defendant’s retaining it without objection.

A demand to change to the proper county, and a stipulation from plaintiff to change, and changing to the proper county accordingly, is a change “ by consent of parties.”

This motion is therefore irregular, and cannot be made here.

Motion denied.