Frank Fisher, Respondent, v. Levi Ogden, Appellant, Impleaded with Z. I. De Long

Frank Fisher, Respondent, v. Levi Ogden, Appellant, Impleaded with Z. I. De Long. The place of trial named in the complcdnt prevails over that in the summons — remedy for inadvertent error. Where the place of trial named in the summons and that named in the complaint, are different, the county named in the complaint determines the venue of the action. The mere inadvertence of an attorney in naming a different place of trial in the complaint from that named in the summons -will not he held to effect a change of the place of trial, provided he moves promptly in the matter to correct the error, and does not permit his adversary to act itpon the assumption that, the change was intentional. Appeal by the defendant, Levi Ogden, from an order of the Supreme Court, made at the Washington Trial Term and entered in the office of the clerk of the county of Washington on the 4th da.y of December, 1896, denying his motion to strike the action from the calendar of the Trial Term of the Supreme Court in Washington county. This action was commenced by the service of a summons without complaint; the summons stated that the trial was desired in Washington county. The defendants appeared by their attorney, who served a notice of retainer and demand for a copy of the.complaint. The complaint was thereafter served, but set forth the venue as. Warren county. The defendants thereafter served their answer, which was entitled, “Supreme Court"—Warren County.” Thereafter, the.cause was put upon the calendar of the September Trial Term in Washington county. The defendants moved to strike the cause from the calendar, because the venue was in Warren county and not in Washington county, which motion was denied. James JJ. Bain, for the appellant. A. V. Pratt and J. II. Whitman, for the respondent. [MAJORITY — Herrick, J.] Herrick, J. It seems to me that, within the principle of the cases of Rector v. Ridgwood Ice Co. (38 Hun, 293; affd., sub. nom. Rector v. Ridgewood Ice Co., 101 N. Y. 656), of McCosker v. Smith (20 Civ. Proc. Rep. 324; affd., 133 N. Y. 672) and of Faherty v. S. S. T. Boat-Line (43 Hun, 432), the place designated in the complaint as the-place of trial is controlling, and that, therefore, the motion to strike it from the calendar should have been granted. It was insisted upon the argument of this appeal that the change here had been inadvertently made, but we must decide.' upon the record before us, however meagre that may be. All that we have before us is the summons, notice of retainer,., the complaint and answer, the order denying the motion, the memorandum of the justice of his reasons for such denial and the notice-of appeal. The order appealed from recites only the reading of the summons,, notice of retainer, complaint and answer, which contain nothing- to-show but that the change was deliberately and intentionally made by the plaintiff and assented to by the defendants. Service of the answer, entitled as above set forth, should have called the attention of the plaintiff’s-attorney to the change that had been made, if it was unwittingly made on his part.' Of course, the mere inadvertence of an attorney in naming a different place of trial in the complaint from that named in the-' summons, should not be held to effect a change of the place of" trial desired by .him, but if he does not desire such change to result in changing the place of trial, he should move promptly to' correct his mistake, and not allow his adversary to act upon the assumption that the place of trial desired by him is as designated in the complaint. Upon the record, as it appears here, the venue of the action was in Warren county, and the case had no place on the calendar of the Trial Term in Washington county, and should have been stricken therefrom. The oiider should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs. All concurred. 'Order reversed, with ten dollars costs and disbursements, and motion granted.