Schippman v. Schippman ( 1962 )

Charles Lambiase, J.

This is a motion by the defendant Leo Lucas “ for an Order changing the place of trial of the above entitled action from the County of Monroe to the County of Orleans, a proper county, on the grounds that the county designated for that purpose in the Complaint is not a proper county, and for such other and further relief as to the Court may seem just and proper, including the costs of this motion.”

When this matter first came before us, it was not made to appear whether the codefendant, Ilse Schippman, had been served or whether she had appeared in the action. Codefendant Hse Schippman apparently had not been served with notice of this application. Had she been served in the action, and had she appeared, she would have been entitled to notice of this application. (Sailly v. Hutton, 6 Wend. 508; Reichenbach v. Corn Exch. Bank Trust Co., 249 App. Div. 539; North Shore Ind. Co. v. Randall, 108 App. Div. 232.) We, therefore, asked for clarification on this point.

In compliance with, our request there has been submitted to us this day an affidavit of one of the attorneys representing the codefendant, Ilse Schippman, wherein it is deposed by him that the first appearance herein of said codefendant was on February 27, 1962, subsequent to the making and argument of the instant motion. Said attorney also deposes that Ilse Schippman has no objection to the cause being tried in the County of Orleans as demanded by codefendant, Leo Lucas.

The motion must be and is hereby in all respects granted.