3 Abb. Pr. 184 | N.Y. Sup. Ct. | 1856
This case has become somewhat complicated by cross motions and ordérs to show cause, but the questions in difference between the parties can readily be distinguished, and I shall proceed to consider them in the order in which they have arisen in the cause.
The action is brought to recover damages for the conversion of a ring. The plaintiff is a non-resident, and the defendant is an infant. He appeared by a guardian, and put in an answer, in which, after denying generally all the allegations of
The first motion noticed in the cause was an application by the plaintiff to strike out this part of the answer. After this had been noticed, and before the day for its hearing, the defendant obtained from the county judge of Kings County an order for the plaintiff to show cause at the subsequent term of this court, why the place of trial should not be changed, and staying all his proceedings in the meantime. The plaintiff disregarded this stay of proceedings, and took his order by default, and at the same time obtained an order, returnable to-day, for the defendant to show cause why the order and stay of proceedings granted by the county judge should not be vacated. The defendant at the same time applies to set aside his default as irregular, because taken while this stay of proceedings was in force. The first question which I have to determine is whether the county judge of Kings County had power to grant this order. The action was brought by the plaintiff in Dutchess County, but it appears that she is a resident of the province of Canada. The papers, on the part of the defendant, show that he resides in Kings County, and the order of the county judge was for the plaintiff to show cause why the action should not be removed from Dutchess to that county. So far as now appears, as I shall have occasion to observe more at length presently, this application ought to be granted. But until this court shall make an order changing the place of trial, the cause belongs where the plaintiff has brought it, and is “ triar there, within the meaning of § 401 ■ of the Code; and it is perfectly plain that the county judge of Dutchess County is the only county judge who has jurisdiction to make any order in such an action. It is not contended that these officers possess any jurisdiction in such cases except what is conferred
It would, however, under the circumstances, be pretty much a matter of course to open this default on terms, and allow the ' defendant to be heard hereafter as to the sufficiency and relevancy of that part of his answer which has been stricken out by the order taken by the plaintiff- by default. But the parties have agreed that I should now consider and dispose of this question as an original application and upon its merits, and it has accordingly been fully argued. -If the defence which is alleged in this part of the answer was that the defendant had this property under an agreement which justified him in detaining it, and that the plaintiff was not entitled to its possession, because she had not performed the agreement, by
In the next place the defendant applies to set aside an order of arrest, by which he is now held, on the ground that the undertaking, given as required by section 182 of the Code, was executed by two sureties only for the plaintiff, and not by the plaintiff with them. There is no objection made to the sureties, who have justified, nor is any real reason given for desiring the plaintiff to have joined in the instrument, as she is a non-resident, with no property, so far as we know, in the State. The objection, therefore, is merely technical; still, if it be well taken, it must prevail; and that it is well taken, I am referred to Richardson v. Craig, (1 Duer, 666), which certainly is an authority expressly in point. But with the utmost respect for the accomplished judge who gave the opinion in that case, as well as the learned court by whom that opinion seems to have been concurred in, I am compelled to construe § 182 of the Code differently. Suppose the position of the parties to the present action had been reversed, and the plaintiff were an infant, would the court be compelled to set aside such an undertaking as this because a party had not joined in its execution, whose arrest or undertaking could be of no possible validity or legal force, who could not legally execute it at all. Such a difficulty as this seems to have occurred to Mr. Justice Duer, and he meets it by suggesting that in such a case the guardian or next friend might be considered as the plaintiff, and his execution of the undertaking would be sufficient. But I am unable to see, upon the strict and literal construction of the statute which he adopts, requiring that the undertaking should be made 5 y, in order to be upon the pari of, the plaintiff, how such a presumption can be indulged. It seems to me, however, that it is not a necessary nor indeed a natural interpretation of the words of the statute, to require that the undertaking in this and similar cases should be executed by the party, in order to satisfy the direction that it should be on his part. And if we are not bound to adopt such a construction, we certainly ought not to prefer it. I can see no benefit to result to the party for whose protection such undertakings are required, from compelling his adversary to unite personally in
The only remaining question arises on the renewed application by the defendant to change the place of trial to Kings County. This as well as the question upon the arrest is brought up by a second order to show cause here granted by a justice of the court. I see no reason why the motion to change the place of trial to the county of Kings .should not be granted. The Code so directs in a case like this, where one of the parties is a non-resident, and the other resides in the county proposed. In the affidavit read by the plaintiff's
As neither party has been completely successful upon the motions which have now been heard together, neither will be allowed any costs on the present hearing.
To the same effect is Bellinger a. Gardner, 3 Ante, 441.