27 N.Y.S. 832 | N.Y. Sup. Ct. | 1894
The summons and complaint in this action ■show upon their face that the action is prosecuted against a public officer for an alleged omission to perform an official duty as sheriff of Fulton county. It was therefore a local action, and, within the language of section 983 of the Code of Civil Procedure, “must be tried in the county where the cause of action arose,” unless the defendant has, by some act or omission on his part, forfeited his right to insist upon that provision of the Code. It is true that, notwithstanding this apparently mandatory provision,
It is also insisted that the defendant’s affidavit of merits on this motion is defective. There would be force in this objection if the defendant’s papers, outside of the technical affidavits of merits, did not, upon their face, disclose a meritorious defense, but we think enough appears upon the face of the defendant’s papers, if established by proof, and not explained away by the plaintiff, to amount to a defense upon the merits, and that any defect in the technical requirements of an affidavit of merits is cured by the other affidavits in the case. The motion was, therefore, properly granted, on the ground that this being a local action, and not brought in the proper county, the court might properly order it tried in the proper county on this motion. But the fhotion in this case was also made on the ground of the convenience of witnesses, and upon that aspect of this motion we think the special term
Several objections are embodied in the order and urged' as a reason of reversal, but we think, on the whole, sufficient was considered by the learned judge at special term to enable him to reach a correct conclusion, and» that his determination should be sustained. Order affirmed, with $10 costs of this motion and printing disbursements.
PUTNAM, J., concurs in result. HERRICK, J., not acting.
Section 985.