(77 Hun. 11.)

#### BECKER v. TOWN OF CHERRY CREEK.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Change of Venue—Laches.

A change of venue for convenience of witnesses will not be granted where the motion was not noticed until more than a year after joining issue in the action, and the delay is not excused by the fact that a year has been consumed in attempting.to change the venue on other grounds.

Appeal from special term, Brie county.

Action by Philip Becker against the town of Cherry Creek. From an order denying a motion to change the place of trial from Erie to Chautauqua county, for the convenience of witnesses, defendant appeals. Affirmed.

For former report, see 24 N. Y. Supp. 19.

Argued before DWIGHT, P. J., and HAIGHT and BRADLEY, JJ.

C. R. Lockwood, for appellant.

Adelbert Moot, for respondent.

HAIGHT, J.

This action was brought August 12, 1892, and issue was joined November 12, 1892. The case was first noticed for trial by the plaintiff, and put upon the calendar for the Erie November circuit. Thereupon, a motion was made by the defendant to change the venue to Chautauqua county, on the ground that that was the proper county for the trial of the action. This *280motion was denied. The case was then again noticed for trial toy the plaintiff, and placed upon the calendar for the February circuit. An appeal was then taken to the general term from the order denying the motion for a change of venue, and a stay of proceedings was obtained pending such appeal. At the June general term the order was affirmed (24 N. Y. Supp. 19), and the case was again noticed for trial by the plaintiff for the September term; but the notice was returned, and an appeal was taken from the order of the general term to the court of appeals. In October the order was affirmed in that court (35 N. E. Rep. 208, mem.), and the case was again noticed by the plaintiff, and placed upon the calendar for the Erie November circuit. Thereupon, motion was made to change the place of trial, for the convenience of witnesses, and the same was denied by the Erie special term No vember 27, 1893.

We are of the opinion that the defendant is chargeable with laches, and that the motion was properly denied by the special term. It appears that over a year had elapsed since the joining of issue when this motion was noticed for hearing. Rule 47 provides that:

“No order to stay proceedings for the purpose of moving to change the place of trial shall be granted unless it shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined.”

In Moreland v. Sanford, 1 Denio, 660, the motion was to change the venue from Tompkins to Montgomery county, for the convenience of witnesses. Beardsley, J., in delivering the opinion of the court, says:

“This motion is too late. It should have been made at the April or June special term. Had it been made at either of those terms, and denied, the plaintiff might have noticed the case for trial at the late August circuit in Tompkins, which he was precluded from doing by the order to stay proceedings for this motion made in June. The plaintiff has thus been delayed by the unexcused neglect of the defendants. * * * A party sued is bound, at his peril, to move for a change of venue at the earliest practicable day, if his delay to a later period may have the effect of carrying the plaintiff over a circuit in the county where the venue is laid.”

In Darragh v. McKim, 2 Hun, 337, Daniels, J., says:

“The issue in this action was joined on the 20th of September, 1873; and the order to show cause why the action should not be removed into this court, and the place of trial changed, was not made until the 8th day of August, 1874. During that interval it was noticed for trial, and placed upon the calendar of the superior court; and two circuits have been held in the county of Queens, to which the defendant -applied to have the place of trial changed. This delay, together with the loss of these two circuits, at which this action could probably have been tried if the motion had been promptly noticed, and a change made, constitutes sufficient reason for its denial.”

See, also, Anon., 18 Wend. 514; Garlock v. Dunkle, 22 Wend. 615; Brittan v. Peabody, 4 Hill, 63, note.

The delay, in this case, in making the motion, is greater than that in any of the above-reported cases. In the mean time three circuits have been held in Chautauqua county, at which the case might have been tried, had the motion been promptly noticed, *281and the order granted. The fact that a whole year has been consumed in a fruitless attempt to change the venue upon other grounds is no excuse for the delay in making this motion.

It is claimed on behalf of the respondent that the testimony of the witnesses for whose convenience the change is asked is immaterial, upon the authority of Franklin Co. v. German Sav. Bank, 142 U. S. 93, 12 Sup. Ct. 147, and Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465, 32 N. E. 1058. Possibly, this is so, but we prefer not to determine the question at this time. The order appealed from should be affirmed, with $10 costs and disbursements.

LEWIS, J., not sitting.