175 A.D. 684 | N.Y. App. Div. | 1916
The action is brought by the Brooklyn Borough Gas Company against the Public Service Commission for the First District, the City of Hew York, Egburt E. Woodbury, as Attorney-General of the State of Hew York, and Harry E. Lewis, as district attorney of Kings county, to enjoin them from taking any proceedings by mandamus or by suit for penalty or otherwise from enforcing what is called “ The Eighty-Cent Gas Law ” (Laws of 1906, chap. 125), made applicable to the plaintiff corporation by the amendments made by chapter 604 of the Laws of 1916. All parties are content to have the action tried in the county of Hew York except the district attorney of Kings county. He makes this motion on the ground that he as a matter of right may have the venue changed to Kings county because he is a public officer, and under subdivision 2 of section 983 of the Code of Civil Procedure, the action can only be tried in the county where the cause of action arose. This section reads: “ An action, for either of the following causes, must be tried in the county where the cause of action or some part thereof arose: 1. * * *. 2. Against a public officer,* or a person specially appointed to execute his duties, for an act done, in virtue of his office, or for an omission to -perform a
In my opinion this case is not governed by section 983 of the Code of Civil Procedure, first, because the action is not against the officer for an act done in virtue- of his office or for an omission to perform a duty; secondly, because the relief sought is not only against the district attorney of Kings county but against a State board located in the borough of Manhattan and a State officer located in the Third Judicial Department, who are equally interested in the place of trial of this action, but who are content with the venue in the First Judicial District. It will be borne in mind that this application is made as a matter of right and not as a matter of discretion, and, in my judgment, the right to change the place of trial has not been shown, and the order should be affirmed, with ten dollars costs and disbursements.-
Scott and Page, JJ., concurred; Clarke, P. J., and Dowling, J., dissented.
Order affirmed, with ten dollars costs and disbursements.