Chapin against De Groff and others

Chapin against De Groff and others. The venue changed!4 if the motion be made after issue joined, provided it appkintiffatmay lose a trial by e delay. A. C. Paige, moved to change the venue in this cause from the county of Ontario to the county of Schenectady, on the usual affidavit, J. C. Spencer, contra, read an affidavit showing that issue was joined before the last May term, viz. on the 27th April preceding; that on the 25th of May, the defendants’ attorney procured an order to stay all proceedings on the part of the plaintiff till the last day of the present term, which was founded on the affidavit to change the venue. This order was served on the plaintiff’s attorney on the 2d day of June last; previous to which he had forwarded to the defendants’ attorney a notice of trial for the Ontario circuit, to be held on the 3d Monday of June. He contended that the application was too late; and cited Delevan v. Baldwin, (3 Caines’ Rep. 104,) and Kent v. Dodge, (3 John. Rep. 447.) [MAJORITY — Curia.] Curia. This motion might have been made at May term; instead of which, the defendant lies by, without excuse till the 25th of May. He then obtains an order to stay proceedings, which carries the plaintiff over the Ontario circuit, and produces the loss of a trial. If the defendant will wait till after issue joined, before he moves to change the venue, it behoves him to see that the plaintiff cannot lose a circuit by the delay. (Kent v. Dodge, 8 John. 447.) Motion denied.