The order in this case is appealable. The action had been pending several years in the Superior Court. A trial had been had in that court, and the judgment rendered upon the verdict had been reversed by the Court of Appeals and a new trial ordered.
It is urged that the new Code (sec. 269) has so far changed the practice that the defendant stands precisely as though no trial had ever been had. The court below thought that the long delay in making the motion, and the fact that a trial had already been had, were, under the established practice of the court, facts sufficient to defeat the motion. We concur in that view. The change made in the phraseology of the Code was not intended to make any change in the practice, but merely to include other courts than those mentioned in the former statute. The language of the Code shows that the power to remove is only given for the purpose of changing the place of trial. The power should not, therefore, be exercised in a case where the court, under its established practice, would not change the place of trial if the suit were already pending in this court. The settled practice of this court would not permit (except under most extraordinary circumstances) the change of the place of trial, for the mere convenience of witnesses, after the lapse of seven years from the joining of issue, and after one trial had been had, and subsequent proceedings had resulted in the ordering of a new trial by the court of last resort.
We think the order should be affirmed, with ten dollars costs, besides disbursements to abide event.
Brady, J., concurred. Present — Davis, P. J., and Brady, J.Order affirmed, with ten dollars costs, besides disbursements to abide the event.