June 10, 1910.
J. Arthur Hilton of counsel [ Hugart F. Norman, attorney], for the appellant.
D.A. Marsh of counsel [ George D. Yeomans, attorney], for the respondent.
After this case had been some nine months on the calendar, had been noticed for trial by both sides and had been answered "ready" from day to day upon the call the trial justice of his own motion marked it off the calendar, presumably upon the ground that the plaintiff was a resident of the county of Kings, that the defendant there operated a railroad, that the accident occurred in said county and the defendant there had its principal place of business. A motion was subsequently made to restore the case to the calendar, which motion having been denied the plaintiff appeals.
The Appellate Division in the Second Department, in Phillips v. Tietjen ( 108 App. Div. 9), held, upon a review of the cases, that the court had no power of its own motion and under such circumstances to change the place of trial of a transitory action. This was followed in the same department by Schober v. Fifth Avenue Coach Co. ( 110 App. Div. 921).
In this department we have applied the same rule to actions in the Municipal Court, Matter of North American Mercantile Agency Co. ( 124 App. Div. 657), where we granted a mandamus to compel the clerk of a Municipal Court to issue a summons from said court which had been refused upon the ground that the defendant did not reside in the district. This was followed in Matter of Nitchie ( 125 App. Div. 378).
The Supreme Court is a court of general jurisdiction, extending over the whole State. In transitory actions parties have a right to lay the venue in any county and there have the issues disposed of if they so desire. The privilege of removal which is given to the defendant may be waived and if so waived the court of its own motion may not refuse to try the action.
The order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and motion to restore to the trial calendar granted.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.