Calonie v. Smith , 235 N.Y.S. 6 ( 1929 )

Senn, J.

The cause of action arose in Schuyler county and the plaintiff resides there. None of the parties reside in Chemung county. On this ground the defendant moves to change the place of trial to Schuyler county.

No proofs were offered and no counter-motion was made on the return of the motion papers herein.

The only ground of opposition to the granting of the order sought is the conceded fact that an order awarding the plaintiff ten dollars costs was entered on January 24, 1929, and on February 25, 1929, when the affidavits on this motion were mailed to the plaintiff’s attorneys, these costs had not been paid.

The plaintiff’s attorneys did not return the motion papers, but raised the question on the argument of the motion, at which time the said sum of ten dollars, awarded as stated, was tendered in cash to the plaintiff’s attorney by the defendant’s attorney.

The moving papers not having been returned and the whole matter having been before me on March 19, 1929, the return date, I hold that on the making of the tender, the stay then and there terminated. At any rate, I believe I had the right to so determine. The defendant’s proceedings were not wholly void. As stated by the court in Wessels v. Boettcher (142 N. Y. 212, 214): “ The only effect is to render the proceedings irregular, and when brought to the attention of the court the party violating the stay will be dealt with as may be proper.”

The above was a case where a party, while under the disability of a stay for the non-payment of costs, had procured an attachment against defendant’s property. On appeal from an order denying the motion to vacate the attachment, the General Term held that the order would be affirmed on the condition that the former motion costs were paid within twenty days.

An order may be submitted for a change of the place of trial of this action from the county of Chemung to the county of Schuyler, with ten dollars costs of this motion, provided the costs of the former motion shall have been paid as tendered, otherwise without costs.