Sherman v. Gregory

Lamont, J. The contract of maker and of indorser of a. promissory note, is not joint, but several, although the Code (sec. 120,) allows both to be sued in the same action at the. option of the plaintiff. This form of action with such joinder of defendants, was authorized by the laws of 1832, chapter 276; and afterwards, by chapter 282, of the laws of 1841,. it was allowed to a party thus sued to apply to the supreme' court for such order or relief as he would be entitled to, if he had been separately sued in the action, and the court was authorized in their discretion to grant to such party applying the like- order or relief, that by the rules and practice of the court, would be granted to such party if separately sued. The defendant Ira Gregory, the indorser, if he had been sued separately, would be entitled to a change of the place of trial, in this case, provided he made the written demand therefor before his time for answering expired (Code, % 125, 126.) The objection first heard on this motion, that the service, of such demand was a nullity, because the plaintiff’s attorney paid the letter carrier three cents deficient postage when he • received the package, comes too late. If the attorney intended to rely on that irregularity, he should, have refused,to receive the letter (Anon. 19 Wend., 87; 1 Hill, 217; Bross agt. Nicholson, 1 How., 158 , Wood agt. Hartshorn, 2 How., 71,) or returned the papers with notice of the objection (Van Benthuysen agt. Lyle, 8 How., 312; Georgia Lumber Co. agt. Strong, 3 How., 246; Knickerbocker agt. Loucks, 3 How., 64,) or, at least, he should have notified the defendant’s attorneys, that he should disregard the sendee, for the specific reason now insisted on (Cortland Co. Mut. Ins. Co. agt. Lathrop, 2 How., 146.) By retaining the papers, and writing to the defendant’s attorneys, that he had received the demand and declining to [485] ■consent to change the place of trial, without mentioning the alleged irregularity, he has waived it. Therefore, the defendant, Ira Gregory, having made the demand in time, is entitled to have the place of trial changed •as to himself, under the act of 1841 (supra,) unless debarred by the want of a sufficient affidavit of merits. The case of Legg agt. Dorsheim, (19 Wend., 700,) was decided before the act of 1841, was1 passed, and probably led to the passage of that statute (Britton agt. Peabody, 4 Hill, 63, note 2) At all events, that decision is no longer applicable to cases like the present. The general rule is, undoubtedly, in other cases than actions against parties severally liable on bills of exchange •and promissory notes, that all defendants must join in the application except such as have not been served with process, and such as have suffered default (Sailly agt. Cleaveland, 6, Wend., 508; Chace agt. Benham, 12 Wend., 200; New Jersey Zinc Co. agt. Blood, 8 Abb., 147,) or else a good reason must be shown, why all do not join (Welling agt. Sweet, 1 How., 156,) and on the motion by one of several •defendants to have the place of trial changed to the proper ■county, notice of the motion must be given to the defendants who do not move, unless the moving defendant obtains the consent of the others to the change ; and the court will order the motion to stand over, in order that notice thereof may be given to the co-defendants, or their consent obtained (Mairs agt. Remsen, 3 Code Rep., 138.) In the present case, the defendant who did not make the demand joins in the application ns a moving party. The order must be granted, therefore, as to both defendants unless the objection of the want of an affidavit of merits is fatal. The affidavit of merits made by defendant’s attorney must be rejected for the reason that no -excuse is given for its not being made by the defendants. In vol. 2, 245, (note g) of Messrs. Abbotts’ valuable collection of forms of practice and pleadings, it is said, that an -affidavit of merits is necessary to support this class of motions, by virtue of section 46 of the judiciary act of 1847, [486] which section is there stated to be still in force, citing Lynch agt. Mosher, (4 How., 86, Laws of 1847, chap. 280,) and the' forms of affidavit contained in that compilation, on which to base the motion, includes an affidavit of merits. But' these usually accurate authors, were laboring under a. mistake, for that section of the judiciary act was, in terms,, repealed by section 17, chapter 470, of the same year andi has never been re-enacted. By the latter statute, the venue-in transitory actions, was restored, to about the same condition as in the Revised Statutes (vol. 2, 409,) and the residence of the parties disregarded in laying the venue. The-case of Lynch agt. Mosher, (supra,) was a motion to change-the place of trial for the convenience of witnesses, and in. remarking upon section 46 of the judiciary act, the learned; justice says, that under the Code, instead of the service of an affidavit of merits and notice of motion to change the venue, the defendant must, before the time to plead expires, demand in writing that the trial be had in the proper county, that is, a county wheré a party resides. Although this remark, was obiter, yet it shows the opinion of the judge, that no-affidavit of merits was required under the Code, for motions-of this - character. ¡Neither the Code, nor the rules of this court, in terns exact an affidavit of merits in order to change the place of trial, to the proper county, that is, to a county where some of the parties reside. Since the legislature has abolished the-affidavit of merits, in such cases, and neither subsequent, legislation nor the rules of court hav e restored it, I think the substitute of another demand for such change, is all that, can now be required. In the note subjoined to the case of Wood agt. Hollister,. (3 Abb., 16,) and in Hubbard, agt. The National Protection Ins. Co., (11 How., 149), it is laid down, that the change of the place of trial to a county where a party resides, is a. matter of right, with the defendant; and in the latter case, it is said, that the defendants being in default for not answer [487] ing, is no objection to the motion; that the motion may be made before issue joined, or at any time thereafter before trial, or before judgment, if no trial is had. The plaintiff is in no fault for laying the place of trial in the wrong county, and on demand made, should have changed it either by an amendment of the complaint or giving the stipulation, or applying to the court for an order. The motion is granted with ten dollars costs.