The New York herald., 1871-01-03

Tho James Fisk, Dr., Suit Against tho Albany
and Susquehnnna Railroad COmpany-Con-
trovcrsy Over the Place OF Trial Approxi-
mating a Characterization by Judge lar
ned vacating Orders by Judge Barnard.
ALBANY, Dec. 81, 1870.
James Fisk, Jr., ps. The Albany ana SusQuehdnna
Ralroad Company ct aL-The place Of trial In this
action was originally in New York. A motion was
made on benalf Of all the defendants except Her.
rick TO change the place Of trial 10 Albany unity
on account OF the convenience OF witnesses. This
motion was heard at Special Term In New York,
before Mr.. Justice Brady, and was decided by him
on the 18th or December His decision was that the
place OF trial would be changed to Albany county
unless the plaintiffs counsel should prefer Rensse.
laer in which case 1t would be changed to Rensee-
laer. The PLAINTIFFS counsel therefore drew up an
order changing the place OF trial TO Rensselaer,
county, and the same was entered on the
16tn OF December. On The 2oth Of December,
upon the suggestion of defendants counsel that the
county was In consequence or the preference Of
plaintiffs counsel for Rensselaer, than for Albany,
Brady after nearing counsel for both parties set.
tied the fern OF the order, and the same was ac-
cordingly entered as OF the 10Th OF December. The
order thus entered states that the Court had an
nounced Its decision that the place OF trial be
changed to Albany unless the plalntilr's counsel
that the plaintn-s counsel having SO elected 1t Is
ordered that the place Of trial be changed to Rsns.
schem ass9 a e was IN a this
ment that the plaintiffs counsel declined to elect to
take any other county than New York, that he
consented to no statement ON that subject
In the order except bare expression OF preference
for Rensselaer, over Albany county, the plaintiff pro.
cured from Mr.. Justice Barnard on the same 10th
day OF December Chamber order to show cause at
Special Term In New York, December II, why the
Aforesaid order should not be corrected to conform
to the facts stated in that afldavit with stay OF
proceedings meantime and an order to the County
CLERK not to remove the papers to any county. A
certified copy Of the order granted on the 20tn by
Mr.. Justice Brady was filed In Rensselaer, county
December Il. On the 2oth OF December the plaintiff
appealed from the order changing the place OF trial
that is the order settled that day by Mr. Justice
Brady-and obtained from the Special Term at New
York, held by Mr.. Justice Barnard, an order eL
pd7e staying proceedings until the determination OF
the appeal, and forbiddlng the County Clerk to
transfer the papers until the decision OF the appeal
Two separate motions are now made by tue de-
Frst-A motion to vacate and set aside the last
mentioned order staying proceedings during the
appeal, and
Second-To vacate the Aforesaid Chamber order OF
Mr.. Justice Barnard and to stay plaintlr from pro-
ceeding IN the First Judicial district.
For defendant, on first motion, appeared Mr.. Hale;
on second Mr.. Peckham and Tor plaintiff Mr.
such are the preliminary facts in the case. Tho
following is the
DECISION OF JUDGE LARNED.
The order OF the Special Term granted on the 18th
Of December changed the place OF trial 70 Rensse
iaer at once The transfer OF the papers Is subse-
quent clerical duty But the place OF trial is none
this duty 1t often the case that no papers are on
file. But that fact would not prevent the place OF
trial Of the cause from being changed from one
county to another. Under the former practice the
Court could change the venue. And yet the papers
in the cause remained in that one Of
the four clerks 0fices where they had
from the granting Of the order the place Of trial has
been and il Rensselaer, county. This change Is not
a6ectsd by The stay Of proceedings or by The ap.