Finch School v. Finch

129 N.Y.S. 1 | N.Y. App. Div. | 1911

Rich, J.:

The defendant appeals from an order denying his motion for a change of venue from Westchester to New York county. The moving papers allege that the plaintiff is a domestic corporation, having its principal office and place of business at No. 61 East Seventy-seventh street, in the borough of Manhattan. It is, therefore, a resident of the county of New York. (2 Rumsey Pr. 135, and cited cases.) It is also alleged that the defendant is a resident of the same borough and county. The answering affidavits do not deny that it is a domestic corporation, with its main office and place of business in New York county, but are devoted to an attempt to show that in March of 1910 the defendant was a resident of Putnam county, and that Westchester, and Putnam are adjoining counties. The action was commenced on June 29, 1910. There is no claim made that either of the parties resided in Westchester county when the action was commenced. The respondent files no brief, and I am unable to comprehend what materiality the fact that Westchester and Putnam are adjoining counties has on the question here presented: The action is for an accounting. and a money judgment of $51,109.58. Its place of trial is determined by section 984 of the Code of Civil Procedure, which provides that an action not specified in sections 982 and 983 must be tried in the county in which one of the parties resided at the Commencement thereof. Neither party resided in Westchester county; the defendant, having complied with the requirements of section 986 of the Code of Civil Procedure, was entitled to the relief demanded as an absolute right, and the order must be reversed, with ten dollars and disbursements, and defendant’s motion granted, with costs.

Jenks, P. J., Hirsohberg, Burr and Woodward, JJ., concurred.

Order reversed, With ten dollars costs and disbursements, and motion granted, with, costs.