§ 124. [104.] (Am'd 1849.) Other actions, where the cause, or some part thereof, 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; ex cept that, when it is imposed for an offense committed on a lake, iver 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. Actions against a public officer. A suit brought by the people, and prosecuted by the attorney general of the State, comes within the second subdivision of this section. People v. Hayes, 7 How. 248. Where the act of an officer is beyond the scope of the authority of his office, he is not protected by this section; but where, in performing an act within the scope of his authority, he commits an error, or even abuses the confidence which the law reposes in him, he is still entitled to the protection of the statute. Brown v. Smith,

|

24 Barb. 419. Where a public officer is sued
for an official act, he may waive the statutory
provision that, unless it appear upon the trial
that the act was done within the county
where the trial was had, the jury shall be dis-
charged and a judgment of discontinuance be
entered. The omission to raise the objection
upon the trial, will be regarded as a waiver
by which the defendant is concluded. How-
land v. Willetts, 5 Sand. 219; S. C. Aff'd, 9
N. Y. (5 Seld.), 171.

§ 125. [105.] Other actions, according to the residence of the parties. 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.

a. Meaning of the word "parties." The section of the judiciary act requiring the venue to be laid in a county where some of the parties resided, meant parties in interest and not nominal parties to the record. Hart v. Oatman, 1 Barb. 229; Henry v. Bank of Salina, 5 Hill, 523.

b. Quo warranto.-In an action in the nature of a quo warranto, the place of trial may properly be laid in any county in the State. The people are a party whose residence extends to every county. People v. Cook, 6 How. 448.

c. Amendment.- In cases where the plaintiff may amend his declaration of course, he may so amend as to change the place of trial. Wakeman v. Sprague, 7 Cow. 164.

d. Railroad corporations.- Can a railroad corporation have a residence in any county? Vermont R. R. Co. v. Northern R. R. Co. 1 Code R. N. S. 401.

|

A railroad company must be treated as an inhabitant and freeholder in each county where its track is laid. Sherwood v. Saratoga and Washington R. R. Co. 15 Barb. 650; Belden v. New York and Harlem R. R. Co. 15 How. 17; contra, Wilde v. New York and Harlem R. R. Co. 1 Hilt. 302; and see 2 Wait's Law and Pract. 80.

e. Insurance companies.- Corpora tions, created under the laws of this State, are residents of the county where the office of the company is located, and its general business carried on. Conroe v. National Protection Insurance Co. 10 How. 403.

The fact that such a corporation has an office in another county, where some of their business is done, does not change or affect their residence. Hubbard v. National Protection Insurance Co. 11 How. 149. See Pond v. Hudson River Railroad Co. 17 How. 543.

f. Foreign corporations.-A foreign

1

§ 126.]

PLACE OF TRIAL.

corporation having an agency and business office in one of the counties of this State, is not a resident of such county within the meaning of section 125 of the Code. International Life Assurance Co. v. Sweetland, 14 Abb. 240.

9. Transitory actions.-The place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, and where it appears the largest number of the witnesses, who knew anything of the facts, reside. A majority of witnesses should not necessarily control. Jordan v. Garrison, 6 How. 6; S. Č. 1 Code R. N. S. 400.

h. Actions for divorce.-The common law maxim that the domicile of the wife follows that of the husband, has no application in actions for a divorce, where separation has actually taken place, and where the very proceedings in the action are to show that the relation of husband and wife should be dis

solved, or so far modified as to establish
separate interests, and especially of bed and
board, and domicile and home. In such a case,
the law will recognize the wife as having a
in an action for a divorce, a mensa et thoro,
separate existence and separate rights. Hence,
iff may bring the action in the county where
for cruel and inhuman treatment, the plaint-
she actually resides when it is commenced,
although the defendant resides in another
Vence v. Vence, 15 How. 497; S. C. Aff'd,
county, where both parties formerly resided.
id. 576, n.

i. Injuries to the person.-Except so
far as the place of trial of actions for injuries
to the person has been regulated by statutes
been regarded as transitory, and triable in any
(2 Rev. Stat. 409), such actions have always
his action. McIvor v. McCabe, 16 Abb. 319;
county where the plaintiff might elect to bring
S. C. 26 How. 257.

§ 126. [105.] (Am'd 1851.) Action may be tried in any county, unless defendant demand trial in proper county.

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 proceeedings 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.

I. WHERE THE COUNTY DESIGNATED IN THE COMPLAINT AS THE PLACE OF
TRIAL, IS NOT THE PROPER COUNTY.

a. Proper county-local action-
means a county
The term ". proper county"
in which one or more of the parties to the ac-
tion reside. Lynch v. Mosher, 4 How. 86; S.
C. 2 Code R. 54.

The venue was changed where an action
was brought in Westchester county, to re-
strain the defendant from building a bridge
across a public street in Saratoga, which the
plaintiff alleged would obstruct his view and
injure his property, the court of appeals hold-
ing that it was a local action and that Saratoga

was the proper county. Leland v. Hathorn, 9 Abb. N. S. 97; S. C. 2 Alb. Law Jour. 79. See § 113, note f, ante.

b. Foreign corporation.-The plaintiff was a foreign corporatiou, and the defendant a resident of this State. Held, that the proper county for trial was that in which the defendan agency in this State does not affect the ant resided. The fact that the planitiff has question. International Life Assurance Co. v. Sweetland, 14 Abb. 240.

c. Demand.-The cause of action arose

§ 126.]

PLACE OF TRIAL.

not prejudice another defendant subsequently
served with summons, to make a similar mo-
tion. New Jersey Zinc Co. v. Blood, 8 Abb. 147.
r. Costs of motion.-Under a general
clause in a notice of motion asking for other
and further relief, the party cannot take costs
of motion. But in all motions to change the
place of trial, where costs are asked for in the
notice, costs to abide the event will be allowed,
See also
whether the motion is granted or not. North-
rop v. Van Dusen, 3 Code R. 140.
Hubbard v. National Protection Insurance
Co. 11 How. 149.

s. Transfer of papers.-Rule 3 (Supreme Court Rules), provides that in case the place of trial is changed, the papers then on file and those afterwards filed shall be filed in the clerk's office of the county specified in the order; and all other papers in the cause shall be filed in the county so specified.

t. Affidavit of merits.-The form of an affidavit of merits upon such a motion should correspond with the practice and decisions heretofore made therein. Three things must distinctly appear: 1st. That the defendant has fully and fairly stated the case to his counsel, stating his name and residence. 2d. That he is advised by his counsel that he has a good and substantial defense on the merits. And 3d. That he believes that he has such defense. Lynch v. Mosher, 4 How. 86; S. C. 2 Code R 54.

u.

An affidavit

held insufficient.
of merits is defective, which states that the
defendant "has a good and substantial defense
upon the merits of this action, as he is advised
by his counsel, etc., and as he believes truly."
Lynch v. Mosher, 4 How. 86; S. C. 2 Code R.
54; also an affidavit that the defendant had
stated "the facts of his defense" instead of
"the case." Richards v. Swetzer, 1 Code R.
117; S. C. 3 How. 413; likewise an affidavit
which states that the defendant has stated
"his case in this cause" to his counsel, instead
of "the case,' as required by rule 29. Ellis v.
Jones, 6 How. 296.

held sufficient.-An affidavit of
merits to change the place of trial, which says
that the defendant has fully and fairly stated
"the facts of this case" to his counsel, is suf-
Garrison, 6 How. 6; S. C.
ficient. Jordan v.
1 Code R. N. S. 400.

w. Revealing defense.-Rule 60 (Su-
preme Court Rules), provides that “In addition
to what has usually been stated in affidavits
concerning venue, either party may state the
witnesses are material; and may also show
nature of the controversy, and show how his
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
defendant to disclose the matters which he in-
the place of trial." But it does not require the
but if he prefers to omit it, or make only a
tends to set up in his answer. He may do so;
partial disclosure of his intended defense, he
C. 3 Code R. 106.
may do so. Mixer v. Kuhn, 4 How. 409; S.

x. Staying proceedings.-No order to
stay proceedings, for the purpose of moving to
less it shall appear from the papers, that the
change the place of trial, shall be granted un-
defendant has used due diligence in preparing
the motion for the earliest practical day after
issue joined. Such order shall not stay the
plaintiff from taking any step, except subpœ-
clause to that effect. On presenting to and
naing witnesses for the trial, without a special
filing with the officer granting the order, an
affidavit, showing such facts as will entitle the
the court, to retain the place of trial, the
plaintiff, according to the settled practice of
ings; and the plaintiff shall give immediate
officer shall revoke the order to stay proceed-
notice of such revocation to the defendant's
y. Former and present practice.-
attorney. Rule 59, (Supreme Court Rules.)
Under the former practice the plaintiff could not
directly move to change his venue, but might
move to amend his declaration for that purpose;
and where the defendant had not answered, the
plaintiff might amend his declaration of course.
And in such a case, he might so amend as to
Johns. 148; Wakeman v. Sprague, 7 Cow.
change the venue. Swartwout v. Payne, 16
164. Now, if he desires to amend the venue,
he may do so by amending his complaint, of
course, at any time within the period allowed
After the time expires to amend
of course.
by section 172 of the Code for amendments
of course, he may make a motion to amend his
complaint in such respect, in analogy to the
former practice.

II. CHANGING THE PLACE OF TRIAL ON THE GROUND THAT AN IMPARTIAL TRIAL

CANNOT BE HAD.

a. The influence of the office of sheriff is not sufficient cause to change the venue, on the ground that it will prevent a fair and impartial trial. Baker v. Sleight, Sheriff, etc. 2 Caines, 45.

of the corporation, was too uncertain and reest supposed to exist in favor of the success mote. Corporation of New York v. Dawson, 2 Johns. Cas. 335.

c. The existence of a party spirit in the county where the venue is laid, against the party making the application, is not adeZobieskie v. Bauder, 1 Caines, 487. quate ground for changing the place of trial.

b. Where the corporation of New York city was a party to an action, in which the venue was laid in that city, the d. Turnpike suit.-The court will not court refused to change it, merely on that account, on the bare allegation that an impartial trial could not be had, holding that the inter-change the venue in a turnpike cause, on an

20.

affidavit stating that the county is prejudiced against turnpikes. New Windsor Turnpike Road v. Wilson, 3 Caines, 127.

e. Libel suit.-A strong excitement existing in a county, on the subject matter of a libel suit, is no cause for refusing to change the venue to such county, on the ordinary affidavit. Bowman v. Ely, 2 Wend. 250. But see People v. Webb, 1 Hill, 179.

But, in an action for libel, imputing to the plaintiff the murder of his wife, where, from the facts and circumstances disclosed on the motion, it was evident that an extensive public excitement existed in the county, and there was reason to believe that a fair and impartial trial could not be had, the place of trial was ordered changed. Budge v. Northam, 20 How. 248.

f. Disagreement of jury.—When it is found, by actual experiment, that a fair trial, or, as in this case, no trial can be had in the county where the venue is laid, the motion to change the place of trial will be granted. So held, where there had already been two trials in the cause and no verdict, the juries not

being able to agree. Messenger v. Holmes, 12 Wend. 203. See People v. Webb, 1 Hill, 179.

g. Inability must be established. A supposed excitement or prejudice, which makes it doubtful whether a fair and impartial trial can be had in the county to which it is moved to change the place of trial, is no cause for refusing the motion. The inability to obtain a fair and impartial trial must be clearly established. An actual experiment, by way of trying the cause, or attempting to impannel a jury, should first be made. People v. Wright, 3 Code R. 75; S. C. 5 How. 23. But is not required in all cases. Budge v. Northam, 20 How. 248; People v. Webb, 1 Hill, 179.

h. The judge having been counsel in the cause.-Where the circuit judge of the district, in which the county of trial was situated, had been, previous to his appointment, counsel in the cause, it was held sufficient cause to change the venue. Van Rensselaer v. Douglass, 2 Wend. 290. See also Laws of 1850, p. 20.

Hinchman v. Butler, 7 How. 462.

III. CHANGING PLACE OF TRIAL FOR THE CONVENIENCE OF WITNESSES. a. The motion, by whom made.- | of trial for the convenience of witnessess. Where there are more defendants than one, the general rule is, that all must join in the motion. Sailly v. Hutton, 6 Wend. 508; Welling v. Sweet, 1 How. 156. And where all do not so join, good reason must be shown therefor. id. b. Exceptions.-In an action against several defendants, where some of them have suffered default, the others may move to change the venue. Chace v. Benham, 12 Wend. 200. So, if the action be in form against several defendants, and process be served upon a part only. Brittan v. Peabody, 4 Hill, 62 (n).

So, likewise, in a joint action against the several parties to a bill, or note, under section 120 of the Code, the motion may be made by one of the defendants, since the act of 1841, p. 272, § 1; but before that act, the rule was otherwise. Legg v. Dorsheim, 19 Wend. 700. See, also, Brittan v. Peabody, 4 Hill, 62 (n). The plaintiff cannot directly move to change his venue, but may change it, by amending his complaint of course, within the time allowed, or by motion for leave to amend, after the time to amend of course has expired. Swartwout v. Payne, 16 Johns. 148; Wakeman v. Sprague, 7 Cow. 164.

c. Motion, when made.-Where the convenience of witnesses is the ground of the motion, it should not be made till after issue joined. Hubbard v. National Protection Insurance Co. 11 How. 149; Merrill v. Grinnell, 10 id. 31; S. C. 12 N. Y. Leg. Obs. 286; Hinchman v. Butler, 7 How. 462; Hartman V. Spencer, 5 id. 135. See, also, Sup. Ct. Rules, 59, 60.

d. Demand.-A demand is not necessary before making a motion to change the place

|

e. An amendment of a complaint, by changing the venue to the proper county, after demand, will not prejudice a motion previously made by the defendant to change the venue to another county for the convenience of witnesses, although the defendant has not served an amended answer. The defendant is saved by the provision, that the plaintiff's right to amend his complaint shall be without prejudice to the proceedings already had. Toll v. Cromwell, 12 How. 79.

f. Staying proceedings.-Under Rule 59, (Sup. Ct. Rules,) the defendant, if neces sary, may obtain an order to stay the proceed. ings, for the purpose of making the motion; but no such stay will be granted unless it appears from the papers, that the defendant has used due diligence in preparing the motion for the earliest practical day after issue joined. The plaintiff may, however, obtain a revocation of such order, on presenting to, and filing with, the officer granting it, an affidavit, showing such facts as will entitle the plaintiff, according to the settled practice of the court, to retain the place of trial; whereupon he must give immediate notice of such revocation to the defendant's attorney.

g. Disregarding order.-An order to stay proceedings to enable a defendant to move for change of venue, cannot be disregarded by the plaintiff, although it has the effect of throwing the cause over both the circuit in the county where the venue is laid, and the county to which it is proposed to be changed. The plaintiff, in such a case, should obtain a revocation of the order. Starr v. Francis, 22 Wend. 633.