State Board of Pharmacy v. Rhinehardt , 101 N.Y.S. 769 ( 1906 )

Ingraham, J. (dissenting):

I dissent. I know of no public policy which requires an action for' a penalty to l?e tried in the county in which the parties reside rather than in an adjoining county. The defendant had the right to have the place of trial changed to the proper county, but to enforce that right he was required to serve the notice required by section 986 of the Code of Civil Procedure, and when he failed to serve such notice he lost his right to have the place of trial Changed as a matter of right.

I think it clear that in this case'—as appears to be conceded by the prevailing opinion — the notice was not served in time. Undoubtedly the time within .which the plaintiff was bound to serve the stipulation to change the place of trial was double the time required where the demand was personally served; but when that double time had expired, the defendant’s attorney was required to move within ten days thereafter. As the defendant has lost his right to move as a matter of right, the question as to whether the place of trial should be changed as a matter of discretion was not present, as the motion was made as a matter of right and there were no facts stated to justify the court in exercising its discretion.

I think, therefore, the order should be affirmed.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs. Order tiled.