Hall v. Gilman

79 N.Y.S. 307 | N.Y. App. Div. | 1902

Latjghlxn, J.:

The appeal in this case is from the same interlocutory judgment as was involved in the appeal by Caroline B. Garczynski in the same action. (Hall v. Gilman, No. 1, 77 App. Div. 458.) The appellant is a grandniece of the deceased, George F. Gilman, and her demurrer is upon the grounds: (1) That causes of action have been improperly united, in that a cause of action against the administrators to recover ■personal property has been united with a cause of action against the heirs to recover real estate, and (2) that the complaint does not state facts sufficient to constitute a cause of action.

The appellant is an heir at law of the decedent, and the opinion ■on the other appeal handed down herewith is decisive that a cause -of action is sufficiently stated against her.

One point not presented on that appeal or considei*ed in that opinion is urged by counsel for the appellant here as indicating that causes of action have been improperly united. It is alleged that the decedent left “ a large amount of real and personal property, consisting of houses and lands in the City and County of New York, in the State of New York, and in the City and Town of Bridgeport, in the State of Connecticut, and elsewhere, and of goods, chattels and money and securities for money in the States of New York and Connecticut and elsewhere.” The appellant contends that inasmuch as the action involves both real and personal property it may require different places of trial even within this -State. According to the allegations of the complaint the action will affect the title to real property situated in the county of New York and, therefore, notwithstanding the fact that some real property is situated without the State the venue is properly laid in New York county. (Code Civ. Proc. § 982.) The action will also affect ■the title to personal property which it is alleged is situated within the county of New York. The complaint does not show whether the plaintiff or any of the parties reside in that county. It is claimed by the appellant that under section 984 of the Code of Civil Procedure the cause of action, so far as it affects personalty, must be tried in a county where some of the parties reside and that if none of them reside in the county of New York it cannot be tried there so far as the personalty is concerned. If this be so, it does not appear on the face of the complaint that none of the parties reside in the county of New York and, therefore, the question is not presented by the demurrer. Moreover, since the action will affect the title to real property the provisions of section 982 of the Code require its trial in a county where some part of the real property is situated. Section 984 relates to other actions than those specifically provided for in sections 982 and 983 of the Code. This being- an action specifically provided for in section 982, it does not fall within the provisions of section 984 at all, even though none of the parties reside in the county where the real property is located. The other questions presented have been considered in said opinion which is decisive thereof.

It follows that the interlocutory judgment should be affirmed, with costs, but with leave to the appellant to answer upon payment of the costs of the appeal and of the demurrer.

Van Brunt, P. <L, Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs, with leave to appellant to answer on payment of costs of appeal and of demurrer.