Ajax Rubber Co. v. J. P. Devine Co.

| N.Y. Sup. Ct. | Jan 23, 1926

James O’Malley, J.

The defendant, a domestic corporation, with its principal place of business in Erie county, moves for a change of venue to that county. It asserts that its residence is there and that plaintiff’s residence is in Dutchess county. The action is transitory and the decision of the motion must depend upon whether the plaintiff, as claimed, has residence in New York county. Such residence is claimed because it is doing business here, notwithstanding that its certificate of incorporation fixes its residence in Dutchess county.

Prior to the amendment of 1925 (Laws of 1925, chap. 493) to section 182 of the Civil Practice Act, it was well established that the residence of a corporation was fixed by its certificate of incorporation, and this notwithstanding that it did business in other counties. (Rossie Iron Works v. Westbrook, 59 Hun, 345" court="N.Y. Sup. Ct." date_filed="1891-01-16" href="https://app.midpage.ai/document/rossie-iron-works-v-westbrook-5500134?utm_source=webapp" opinion_id="5500134">59 Hun, 345; Poland v. United Traction Co., 88 A.D. 281" court="N.Y. App. Div." date_filed="1903-07-01" href="https://app.midpage.ai/document/poland-v-united-traction-co-5194105?utm_source=webapp" opinion_id="5194105">88 App. Div. 281; Stoddard v. Manzella, 207 id. 519; General Baking Co. v. Daniell, 181 id. 501; Carvel Court Realty Co., Inc., v. Jonas, 195 id. 662.) Counsel for plaintiff urges that the amendment to the section above referred to has had the effect of changing the rule heretofore established. Section 182, as amended, reads as follows, italicized portions being added by the amendment of 1925: “An action in the supreme court not spect fled in the two following sections must be tried in the county in which one of the parties resided at the commencement thereof. An executor or an administrator shall he deemed a resident of the county of his appointment, as well as the county in which he actually resides. If neither of the parties then resided in the state it may be tried in any county which the plaintiff designates for that purpose in the title of the complaint. A party having or maintaining a residence in more than one county shall he deemed a resident of either county."

It is claimed that the last sentence refers to a corporation as well as a natural person, and that a corporation may now have a residence in a county other than that indicated in its certificate of incorporation by virtue of the fact that it does business in such county.

With this contention I am unable to agree. I find nothing in the amendment indicative of a legislative intention to permit a corporation to have more than one residence, namely, that which it has selected when it receives its franchise. If it desires a change, a method for accomphshing such is provided in section 35 of the Stock Corporation Law of 1923 (Laws of 1923, chap. 787, as amd. by Laws of 1924, chap. 441), and this would seem to be the only method short of further legislative enactment. (Oswego Starch Factory v. Dolloway, 21 N.Y. 449" court="NY" date_filed="1860-06-05" href="https://app.midpage.ai/document/oswego-starch-factory-v--dolloway-3603182?utm_source=webapp" opinion_id="3603182">21 N. Y. 449, 453.)

The-amendment did not seek to confer a new residence but merely provides that where a party has more than one residence the action may be maintained by such party in any county in which such residence is shown to exist. The amendment does not purport to change any pre-existing law as to the existence of a residence.

For these reasons I am of the opinion that the motion should be granted.