CHAPTER X.

IN WHAT PLACE OR COURT TO SUE.

ARTICLE I.

IN WHAT COURTS OR PLACE A PLAINTIFF MUST SUE.

Section 1. What actions must be tried where the subject of the action is situated.

a. Actions for recovery of real property, or for the determination of a right or interest therein. Under the old practice at law, previous to the adoption of the Code, the selection of a court, in which to sue, or the choice of the place of trial, was usually determined, either by the amount of the debt or damages claimed by the plaintiff, or by the nature of the action, as being either local or transitory in its essential features. 1 Burr Pr. 75. These circumstances, however, have no longer a controlling influence, and the whole matter of venue and choice of the place of trial has been made the subject of special statutory provisions contained in several distinct sections of the Code. In some cases the plaintiff has no choice, and if he sue at all he must bring his action in that court or place specifically designated in such cases. The 123d section of the Code provides that certain specified actions must be tried in the county in which the subject of the action, or some part thereof, is situated, and among these are enumerated: 1. Actions 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. The application of this section of the Code, to actions at law, is unquestioned. But there has not been entire uniformity in the decisions in relation to its effect upon equitable actions, although it is now conclusively settled that such actions are as much within the statute as actions at law. An equitable action, brought to have the title to land declared to be in the plaintiffs, on the ground that the deed conveying the title to the defendant is a mortgage, and asking for a conveyance thereof to the plaintiffs, and for an accounting by the defendant, is an action for the recovery and determination of an interest in real estate, and it

Actions for injuries to real property-Actions for partition, etc.

must be tried in the county where the property is situated. Bush v. Treadwell, 11 Abb. N. S. 27.

So of an action of an equitable nature, which seeks to enjoin the defendant from erecting a bridge across a public street, to the apprehended injury of the plaintiff's premises. Leland v. Hathorn, 42 N. Y. (3 Hand) 547; 9 Abb. N. S. 97.

An equitable action brought to obtain a judgment that a conveyance of land by the defendant is fraudulent, and that the land is to be declared to be held in trust for the plaintiff, is within this section. Wood v. Hollister, 3 Abb. 14; Starks v. Bates, 12 How. 465. So of an action which asks that it may be adjudged that specified lands are subordinate to the rights of the plaintiff. Mairs v. Remsen, 3 Code R. 138; Hubbell v. Sibley, 4 Abb. N. S. 403, and Rawls v. Carr, 17 Abb. 96, must be regarded as of no authority, in view of the decisions just cited.

This section of the Code has no application to those cases in which the land is not situated within this State; and yet the supreme court may compel a resident of this State to perform his contract specifically, where he has agreed to convey lands situated in another State. Newton v. Bronson, 13 N. Y. (3 Kern.) 587. See, also, Mussina v. Belden, 6 Abb. 165; Latourette v. Clarke, 45 Barb. 327; S. C., reported directly contrary, 30 How. 247; ante, 17.

b. Actions for injuries to real property. All actions for injuries to real property, whether the remedy sought be legal or equitable, 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 proper cases. Code, § 123.

c. Actions for partition. Actions for the partition of real property are among those required to be brought in the county in which the land is situated. Code, § 123, sub. 2.

d. Actions for foreclosure. "Actions for the foreclosure of a mortgage of real property" must be tried in the county where the mortgaged premises are situated; and this is so, although the money may be loaned and the mortgage executed and delivered to the mortgagee in another county. Code, § 123; Miller v. Hull, 3 How. 325; S. C., 1 Code R. 113; Vallejo v. Randall, 5 Cal. 461. If, however, the place of trial was in a county other than that in which the mortgaged premises are situated, and no motion or demand had been made to change the place first

Distrained property - Actions for a penalty or forfeiture, etc.

selected, the proceedings in the foreclosure suit cannot afterward be objected to on the ground of irregularity. Marsh v. Lowry, 26 Barb. 197; S. C., 16 How. 41. In actions affecting the title to lands, under section 123, the defendant may demand that they shall be tried in the proper county, as a matter of right. Starks v. Bates, 12 How. 465; Bush v. Treadwell, 11 Abb. N. S. 27. See Leland v. Hathorn, 9 id. 97; S. C., 42 N. Y. (3 Hand) 547.

e. Distrained property. If personal property be distrained for any cause, any action brought for its recovery must be tried in the county where it was distrained. Code, § 123, sub. 4.

Section 2. What actions must be tried where the cause of action arose.

a. Actions for a penalty or forfeiture. The 124th section of the Code provides, that other actions "must be tried in the county where the cause of action, or some part thereof, arose,' and among these "are actions for the recovery of a penalty or forfeiture imposed by statute; except, that, when it is imposed for an offense committed on a lake, 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." Code, § 124.

b. Actions against public officers. "Actions 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, must be tried in the county where the cause, or some part thereof, arose." Code, § 124, sub. 2.

An officer, acting beyond the scope of his authority, is not within the protection of this provision of the Code; 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 its benefits (Brown v. Smith, 24 Barb. 419); and he is entitled to this protection, although the suit is brought by the people, and prosecuted by the attorneygeneral of the State. People v. Hayes, 7 How. 248.

Where a public officer is sued for an official act, he may waive the statutory provision of the above section in his favor, and he will be regarded as concluded by this waiver. Howland v. Willetts, 5 Sandf. 219; S. C. affirmed, 9 N.. Y. (5 Seld.) 171.

What actions must be tried where the parties reside.

Section 3. What actions must be tried where the parties reside. a. It is further provided by the Code, that "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." Code, § 125, sub 1.

The term parties, in this section, has been construed to mean parties in interest, and not the nominal parties, or parties to the record. Hart v. Oatman, 1 Barb. 229; Henry v. Bank of Salina, 5 Hill, 523. See Taber v. Gardner, 6 Abb. N. S. 147, 149. Unless otherwise expressly provided, the people may sue in any county, on the ground that they are a party whose residence extends to every county. People v. Cook, 6 How. 448.

The residence of a corporation, for the purposes of this section of the Code, is where its principal office is located, and its general business transacted. Hubbard v. National Protection Ins. Co., 11 How. 149; Conroe v. National Protection Ins. Co., 10 id. 403. See Pond v. Hudson River Railroad Co., 17 id. 543. A railroad company is a resident of every county through which the road passes, and a suit may be brought against it in any such county, where process can be served on the proper officer. Sherwood v. Saratoga and Washington Railroad Co., 15 Barb. 650; Belden v. New York and Harlem Railroad Co., 15 How. 17.

In an action for a divorce on the ground of cruel and inhuman treatment, the wife may bring the action in the county where she actually resides when it is commenced, although the defendant (her husband) resides in another county. The commonlaw maxim that the domicile of the wife follows that of the husband - having no application in such a case. Vence v. Vence, 15 How. 497; S. C. affirmed, 15 id. 576 (n.)

In a transitory action, the place of trial should be in the county where the principal transactions between the parties occurred, and the largest number of material witnesses reside. Jordan v. Garrison, 6 How. 6; S. C., 1 Code R. N. S. 400.

Actions to recover damages for injuries to the person, except so far as they have been regulated by statute (2 R. S. 409) are to be regarded as transitory, and triable in any county which the plaintiff may select. McIvor v. McCabe, 16 Abb. 319; S. C., 26 How. 257.

A foreign corporation, having an agency and business office in one of the counties of this State, is not a resident of such

Jurisdictional limitations as to courts.

The International

county within the provisions of section 125. Life Assurance Co. v. Sweetland, 14 Abb. 240.

b. Non-residents. If none of the parties to an action are residents of the State, such action may be tried in any county which the plaintiff may designate in his complaint, subject, however (as in all the cases before mentioned in this chapter), to the power of the court to change the place of trial in the cases provided by statute. Code, § 125, sub. 2.

ARTICLE II.

IN WHAT COURTS OR PLACE A PLAINTIFF CANNOT SUE.

Section 1. Jurisdictional limitations as to courts.

a. Jurisdiction as to subject-matter. A plaintiff, in some cases, cannot sue in certain courts, because such courts have no jurisdiction over the subject-matter of his action, or over the parties to it, or on account of some other jurisdictional limitation imposed by law. Thus, it has been decided that the courts of this State have no jurisdiction over the subject-matter of patent rights, and that a suit brought in a State court, to restrain the infringement of such right, would not be entertained. Dudley v. Mayhew, 3 N. Y. (3 Comst.) 9; Gibson v. Woodworth, 8 Paige, 132. Nor an action for damages for such infringement. Burrall v. Jewett, 2 Paige, 134. The State courts have no jurisdiction in an action arising under the patent laws. So decided, in a suit brought in which it was necessary for the plaintiff, in order to make out his cause of action, to show the existence and validity of a patent for an invention, and the complaint was dismissed for want of jurisdiction. Tomlinson v. Battel, 4 Abb. 266.

In every case it is the law that confers jurisdiction, and a court can exercise it, only to the extent of the authority thus conferred. Even the consent of parties is insufficient to confer jurisdiction over the subject-matter of an action. Coffin v. Tracy, 3 Caines, 129; Oakley v. Aspinwall, 3 N. Y. (3 Comst.) 547; and the judgment of a court, acting without proper jurisdiction, will be utterly void and unavailable for any purpose. Borden v. Fitch, 15 Johns. 121; Noyes v. Butler, 6 Barb. 613; Dudley v. Mayhew, 3 N. Y. (3 Comst.) 9; Beach v. Nixon, 9 N. Y. (5 Seld.) 36.