Mr. Justice Sill, in Lynch v. Mosher, (4 How. Pr. R. 86,) came to the conclusion that the defendant need not move to change the place of trial until after issue joined. But I do not understand him, or Mr. Justice Parker, in Beardsley v. Dickinson, (id. 81,) to say that the motion cannot be made until the reply is in, or the time for replying has expired. On the contrary, in the latter case, the motion was decided upon the merits, notwithstanding it appeared that the reply had not been served. And the review of the cases by the Judge, in Lynch v. Mosher, to my mind, shows clearly that the motion may be made before reply. The language of the former statute, under which it was held that the defendant must move the first opportunity, after service of the declaration, is very similar to that of the Judiciary Act. (2 R. S. 309, § 2 ; Jud. Act, § 49; Code, § 125; 11 Wend. 186; 4 Hill, 63, n.) In addition to this such, too, is the plain reading of the 47th rule of this court: “Ho order to stay proceedings for the purpose of moving to change the place of trial shall be granted, unless it shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after the service of the complaint. Such order shall not stay the plaintiff in putting the cause at issue, or taking any other step except giving notice and subpoenaing witnesses for the trial without a special clause to that effect,” &c.
These rules were made by the whole court, under the authority of the code, and may be considered as giving construction to the statute. The same court adopted the same rule immediately after the Judiciary Act became a law.
But the plaintiff shows that the answer contains new and material mat*242ter, and that he cannot yet determine what witnesses may be required upon the issues. It will rarely happen that the plaintiff in this stage of the cause will be ignorant of what he intends to traverse by his reply ; but as the plaintiff states that he is so in this case, the motion must be denied, without costs and without prejudice, so that it can be renewed after the reply comes in.