Ross v. City of Rochester , 187 N.Y.S.2d 929 ( 1959 )

Plaintiff appeals from an order which changed the place of trial from the County of Rensselaer to the County of Monroe, pursuant to section 182-a of the Civil Practice Act. “ The place of trial * * * against a city * * * shall be in the county in which the city is situated.” The action is in negligence and the summons and complaint establish the venue in the County of Rensselaer. The defendant, City of Rochester, served an answer and demand for bill of particulars designating the County of Monroe as the venue. Apparently it came to the attention of the attorneys for the city the inconsistency with reference to the venue, and within two days after the service of said answer, the attorneys served an amended answer in which the venue was designated County of Rensselaer together with a demand to change the venue to County of Monroe pursuant to section 182-a of the Civil Practice Act. Upon the plaintiff’s failure to comply, this motion was instituted, and is defended here by the plaintiff on the grounds that defendant city, having failed to make its demand with service of the original answer (Rules Civ. Prae., rule 146) forfeited its rights. Section 244 of the Civil Practice Act accords the defendant city the absolute right to amend its answer within 20 days of the service of the original answer unless it was with the intent to delay the action, which was not the fact in this particular case. The purpose here was to conform the venue in the answer with that of the complaint, a necessarily procedure defect. There is no showing of any prejudice to the plaintiffs herein and a technical construction should not be invoked to aid the plaintiffs in avoiding the application of section 182-a of the Civil Practice Act. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Gibson, Herlihy and Reynolds, JJ.