Lamson Consolidated Store-Service Co. v. Speir

| N.Y. Sup. Ct. | Jan 15, 1889

Andrews, J.

The objection is taken on behalf of the plaintiff that this is not an action against the sheriff of Albany county for an act done in virtue of his office, because the principal relief sought is to restrain the sale of the property levied upon. This objection, cannot be sustained, because the complaint demands judgment against the sheriff for damages alleged to have been sustained by the plaintiff by reason of the levyi There is, however, another • objection which seems to me to be fatal to the motion. The action is brought not only against John W. Hart, as sheriff of Albany county, but also against the defendant Speir, as receiver of the United States Store-Service Company, and against that company itself. Said receiver resides and was appointed in Hew York city, and, under section 984 of the Code, it is his right to have the case remain and be tried here. It does not seem to me that section 983 of the Code¹ applies to a case where a public officer is not the sole defendant, but is sued with other defendants, who reside in a county different from that in which such officer resides. The motion to change the place of trial will be denied, with $10 costs to abide the event.

1 Code Civil Proc. N. Y. % 983, provides that an action against a public officer, or person specially appointed to execute his duties, for an act done in virtue of his office, or for an omission to perform a duty incident to his office, must be tried in the county where the cause of action, or some part thereof, arose.