Henrietta Abrahams, Respondent, v. Charles H. Bensen et al., Appellants

Henrietta Abrahams, Respondent, v. Charles H. Bensen et al., Appellants. (Argued March 18, 1879; decided April 1, 1879.) This action was brought originally in Rockland county. It was for an alleged trespass in the taking of plaintiff’s property by defendant Bensen, who was then sheriff of that county, upon a warrant of attachment in favor of defendant Hyman. The latter, without notice to the attorney for defendant, Bensen, moved to change the place of trial to the county of New York, which was granted. No appeal was taken from this order, and the parties proceeded to trial in New York. The jury disagreed; before another trial defendant Hyman died. Bensen thereupon moved to vacate the order changing the place of trial, which was granted by the Special Term, but that order was reversed on appeal bV the General Term. From the General Term order thi; appeal is brought. Held, that even if the place of trial was illegally changed to New York, defendant Benscn so far acquiesced by going to trial and by other proceedings there that he lost the absolute right to complain; that it was in the discretion of the court below whether or not it would change the place of trial back to Rockland county; and that its order was not reviewable. George F. Langbein for appellants. George H. Forster for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for dismissal of complaint. All concur. Appeal dismissed.