§ 123. (Am'd 1849.) Actions to be tried where subject-matter situated.

Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by statute:

1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property;

2. For the partition of real property;

3. For the foreclosure of a mortgage of real property;

4. For the recovery of personal property distrained for any

cause.

a. This section does not apply when the land, the subject of the action, lies out of the State (Newton v. Bronson, 13 N. Y. 587; Mussina v. Belden, 6 Abb. 166).

b. In action of foreclosure, the place of trial is the county in which the property is situate (Miller v. Hall, 3 How. 325; see Marsh v. Lowry, 26 Barb. 197). An action to set aside a conveyance of land for fraud need not be tried in the county in which the property is situate (Rawls v. Carr, 17 Abb. 96; but see Wood v. Hollister, 3 Ább. 14); and so of an action to set aside a statutory foreclosure, and to redeem from the mortgage (Hubbell v. Sibley, 4 Abb. N. S. 403; and see Mairs v. Remsen, 3 Code R. 138).

§ 124. (Am'd 1849). Actions to be tried where cause of action

arose.

Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court, to change the place of trial, in the cases provided by statute:

1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offense committed

on a lake or river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed;

2. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, shall do any thing touching the duties of such officer.

a. An action by the people, and prosecuted by the attorney-general is within the second subdivision (The People v. Hayes, 7 How. 248). Where the act of an officer is one his office gives him no authority to do, he is not within this section; but for an act within his authority, but improperly performed, he is entitled, if sued, to the benefit of the statute (Brown v. Smith, 24 Barb. 419). A public officer, when sued for an official act, may waive the benefit of the statutory provision that, unless it appears upon the trial that the act was done within the county where the trial was had, the jury shall be discharged and a judgment of discontinuance be entered (Howland v. Willetts, 5 Sand. 219). Actions against Superintendent of Albany Penitentiary personally must be tried in Albany county (Porter v. Pillsbury, 11 How. 240).

§ 125. Actions to be tried where parties reside.

In all other cases the action shall be tried in the county in which the parties, or any of them, shall reside at the commencement of the action; or if none of the parties shall reside in the State, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial in the cases provided by

statute.

b. Parties. By "parties" is meant parties in interest, and not the nominal parties, or parties to the record (Hart v. Oatman, 1 Barb. 229; and see Henry v. B'k of Salina, 5 Hill, 532).

c. Quo warranto.-In an action in the nature of a quo warranto, the place of trial may be laid in any county (The People v. Cook, 6 How. 448).

d. Railroad corporation.--Can it have a residence in any county? (Vermont R. R. Co. v. Northern R. R. Co. 6 How. 106). It is a resident of every county through which its road passes (Sherwood v. Saratoga R. R. Co. 15 Barb. 650; Belden v. N. Y. and Harlem R. R. Co. 15 How. 17; The People v. Fredericks, 48 How. 174; and see The People v. Pierce, 31 Barb. 138). And of the county where the office of the company is located, and its general business carried on (Conroe v. Nat. Pro. Ins. Co. 10 How. 403; Jenkins v. Cal. Stage Co. 22 Cal. R. 537); and the fact that such corporation has an office in another county, where some of their business is done, does not change its residence (Hubbard v. Nat. Pro. Ins. Co. 11 id. 149; see, however, Pond v. Hudson River R. R. Co. 17 How. 543); as to a foreign corporation, see Internat. Ass. Co. V. Sweetland, 14 Abb. 240.

e. Divorce.—The common law maxim, that the domicil of the wife follows that of the husband, has no application in actions for a divorce. Therefore, in an action for divorce, the plaintiff, a wife, may properly lay the venue in the county where she actually resides, though the domicil of the defendant is in another county (Vence v. Vence, 15 How. 576; and see 2 R. S. 147, § 57).

a. Transitory action.-Except in so far as the place of trial in actions to recover damages for injuries to the person has been regulated by 2 R. S. 409, such actions are transitory, and triable in any county which the plaintiff may elect (McIvor v. McCabe, 16 Abb. 319). The place of trial of a transitory action, where plaintiff and defendant reside in different counties, should be in the county where the principal transaction between the parties occurred, and where the largest number of the witnesses reside (Jordan v. Garrison, 6 How.

6).

126. (Am'd 1851.) Change of place of trial.*

If the county designated for that purpose in the complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section.

The court may change the place of trial in the following

cases:

1. When the county designated for that purpose in the complaint is not the proper county;

2. When there is reason to believe that an impartial trial cannot be had therein;

3. When the convenience of witnesses and the ends of justice would be promoted by the change.

When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing, duly filed, or order of the court; and the papers shall be filed or transferred accordingly.

b. Changing place of trial,—county designated not the proper county.-By "proper county" is meant a county in which one of the parties to the action resides (Lynch v. Mosher, 4 How. 88). Where the plaintiff is a foreign corporation, and the defendant is a resident of this State, the proper county for trial is that in which the defendant resides (Internat. Ins. Co. v. Sweetland, 14 Abb. 240). The proper county was Saratoga, and the defendant served a demand that the cause be tried in the "county of New York;" his demand was held to be irregular (Beardsley v. Dickerson, 4 How. 81). The demand must be made before the time for answering expires; and the time for answering will be deemed to expire on the service of the answer, although the answer may be put in before the expiration of the time allowed for that purpose; and the demand to have the trial in the proper county served after an answer may be disregarded (Milligan v. Brophy, 2 Code Rep. 118). But the demand may be made simultaneously with the service of the

C.

As to changing place of trial in actions in the superior court and common pleas, see § 33, ante.

answer (Mairs v. Remsen, 3 Code R. 138). In an action to foreclose a mortgage, where the county designated in the complaint is not the proper county, a demand to change the place of trial and a consent or order of the court thereon are essential to change it (Murch v. Lowry, 16 How. 41; 26 Barb. 197).

a. Motion. The demand does not of itself change the place of trial (Hasbrouck v. M'Adam, 3 Code Rep. 39; 4 How. 342; Houck v. Lasher, 17 How. 520); and if after such a demand the plaintiff neglects or refuses to make the change, the defendant may move to have the place of trial changed, (id.; Mairs v. Remsen, 3 Code Rep. 138; Moore v. Gardner, 5 How. 243; Hasbrouck v. M'Adam, 4 How. 342); but a motion is requisite only in the event the demand is disregarded. The object of the demand is to allow the plaintiff an opportunity of voluntarily correcting his error (Vermont Cent. R. R. v. North, R. R. 6 How. 107). The motion may be made before issue joined, or at any time thereafter before trial (Hubbard v. Nat. Pro, Ins. Co. 11 How. 149; Conroe v. Nat. Pro. Ins. Co. 10 id. 403). The change is a matter of right (Starks v. Bates, 12 How. 405).

b. The plaintiff cannot oppose such a motion on the ground of the convenience of witnesses, because the defendant has no opportunity to answer what may be alleged on that head (id.), and because the motion by the defendant to change the county of trial named in the complaint to the proper county, and the granting an order on such motion, will not prejudice the right of the plaintiff afterwards to move at the proper time, and on the necessary affidavits, to change the place of trial, either for the convenience of witnesses or to obtain an impartial trial (Moore v. Gardner, 5 How. 243; Park v. Carnley, 7 How. 356).

c. The motion must be made in the district in which the county named in the complaint is situate, or in a county adjoining the courty named in the complaint, such county being the proper place of trial until changed (Bangs v. Selden, 13 How. 163, 379; Chubbuck v. Morrison, 6 How. 367; Beardsley v. Dickerson, 4 How. 81; Askins v. Hearns, 3 Abb. 186). A notice of motion in the alternative to "change the venue or place of trial," is sufficient (Hinchman v. Butler, 7 How. 462).

d. In general. all the defendants should unite in making the motion (6 Wend. 508; 19 b. 700). But the motion may be made by one or some of several defendants (Mairs v. Remsen, 3 Code R. 138; and see 6 Wend. 508; 1 How. 156; 4 Hill, 62, note; Laws 1841, p. 272, § 1; 19 Wend. 700; Job v. Butterfield, 1 Eng. Law & Eq. R. 417; 5 Exch. 827; 20 L. Jour. Rep. N. S. Ex. 8). Where the motion is made by one of several defendants, it must be on notice to the other defendants (id.), unless the other defendants are in default for not answering (12 Wend. 200). And where the action is against several, but some only have been served, those served may move alone, and without notice to those unserved (4 Hill, 62, note). Where the motion is made by one or more of several defendants, without notice having been given to the defendants who do not move, the court will permit the motion to stand over, in order that notice may be given (Mairs v. Remsen, supra). A denial of a motion made by one defendant does not prejudice the right of another defendant, subsequently served with the summons, to make a similar motion (N. J. Zinc Co. v. Blood, 8 Abb. 148).

e. Transfer of papers.-If the place of trial is changed for the reason that the proper county is not specified in the complaint, papers on file at the time of the order making such change are to be transferred to the county specified in such order, and all other papers in the cause are to be filed in the county so specified (Rule 3).

f. If, by the demand of the defendant or otherwise, the plaintiff is made aware that the county named by him in his complaint is not the proper county, and he is desirous of inserting the proper county, he may so amend, of course, at any time within the time allowed by section 172 for amendments of course (Toll v. Cromwell, 12 How. 79; Stryker v. N. Y. Ex. B'k. 42 Barb. 511; Root v. Spring, G. Term Supreme Co't, 1st Dist. June, 1866; and see 7 Cow.

164, a.), and if he permit that time to elapse, and afterwards desire to change the place of trial named in the complaint, he should make a motion for leave to amend his complaint in that respect.

a. Changing place of trial for convenience of witnesses.— There is no distinction between actions ex contractu and actions ex delicto, in respect to granting and refusing motions to change the place of trial Where there are several defendants they should all join in the motion (6 Wend. 508; 1 How. 156), unless some have suffered a default, in which case the others may move alone (12 Wend. 200). So, where the action is, in form, against several, and process has been served upon some only, the defendant served may make the motion (4 Hill, 62, note). And in a joint action against the several parties to a bill or note, under section 120, the motion may be made by any one of the defendants (Laws 1841, p. 272, § 1). Before that act the rule was otherwise (19 Wend. 700; 4 Hill, 62, n.); plaintiff cannot move (16 Johns. 149).

b. Motion.-The motion cannot be made until after issue of fact (Gould v. Chapin, 2 Code R. 107; Merrill v. Grinnell, 10 How. 32; Hubbard v. Nat. Ins. Co. 11 id. 149; Hinchman v. Butler, 7 id. 462; Hartman v. Spencer, 5 How. 135; Rule 58). It is not necessary to make a demand in writing, to have the trial in the proper county, before making a motion to change the place of trial for the convenience of witnesses (7 How. 464). But the court cannot, on a motion to change the place of trial for convenience of witnesses, order a change for the reason that the proper county is not designated, no previous demand to change having been made (Houck v. Lasher, 17 How. 520).

e. Defendant, if circumstances require it, may obtain an order to stay the proceedings for the purpose of making the motion. But no such order will 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 issue joined (see Rule 58, Supreme Court, post). Plaintiff cannot treat such an order as a nullity, on the ground that the papers on which it was procured fail to conform to the requisites demanded by the rule (22 Wend. 633).

d. The motion is founded on affidavit, which must, in general, be made by defendant himself, though, under special circumstances to be set forth in the affidavit, it has been held sufficient when made by his attorney in the action (4 Hill, 64). If the motion is grounded on the convenience of witnesses, the affidavit should state the name of the witnesses residing in the county to which the defendant seeks to change the venue (6 Cowen, 389), and their residences (3 Hill, 445; Bleecker v. Smith, 48 Barb. 28), and that each and every of them is material to the defense, as the defendant is advised by counsel, and verily believes (3 Wend. 425; 9 id. 431; 1 Hill, 668; 7 How. 248); and without the benefit of the testimony of each and every of them, he cannot safely proceed to trial, as he is advised by counsel, and verily believes (3 Wend. 425; 9 id. 431); that he has fully and fairly stated the case to his counsel, giving the name and residence of such counsel (Rule 21; 4 How. 86; 3 ib. 413; 6 ib. 296; 1 Code Rep. 117), and has fully and fairly disclosed to him the facts which he expects to prove by each and every of his witnesses (9 Wend. 10; 1 How. 55, 70, 165; 1 Hill, 668); and that he has a good and substantial defense on the merits (1 How. 162), as he is advised by his said counsel, and verily believes (4 Hill, 64, 66; 1 How. 62). The affidavit should also state the name of the county designated in the complaint as the county of trial (1 How. 184; 1 Hill, 668); and if not made by all the defendants, it should show the reason why it is not so made by them (1 How. 156); and in addition to what has usually been stated in the affidavits concerning venue, either party may state the nature of the controversy, and show how his witnesses are material; and may also show where the cause of action, or the defense, or both of them, arose; and those facts will be taken into consideration by the court, in fixing the place for trial (Rule 59). The affidavits, as well those in support as those in opposition, should state what is expected to be proved by the witnesses (Amer. Ex. B'k v. Hill, 22 How. 29).

e. An affidavit which stated that the defendant had a good defense, &c., "as