17 Abb. Pr. 96 | N.Y. Sup. Ct. | 1863
This motion comes up on an appeal from an order denying a motion to change the place of trial. It is insisted by the defendant, Mrs. Carr, that the action is local, within the meaning of section 123 of the Code of Procedure. The first subdivision of that section declares that the action must be tried in the county in which the subject of the action, or some part thereof, is situated, where (among other cases) it is for the determination, in any form, of a right or interest in real property.
The present action is brought to subject certain land at Rochester, which has been conveyed to Mrs. Carr, to the payment .i of a debt due to the plaintiffs, upon the ground that the deed to her was fraudulent and void as against the plaintiffs, who are creditors of her grantors. The place of trial named in the complaint is the city and county of Hew York.
It appears to me that an adjudication in this action, that the deed to Mrs. Carr is fraudulent and void as against the plaintiffs, will effectually determine all her interest in the real property in question.
It requires some special reasoning to avoid the direct force of the foregoing statement. I know of no decisions in this district
There are at least three decisions at special term, of this court which have been reported, holding such actions to be local. (Mairs a. Remsen, 3 Code R., 138; Wood a. Hollister, 3 Abbotts’ Pr., 14; Starks a. Bates, 12 How. Pr., 465.)
I am inclined to follow these authorities. The order must be reversed, and the place of trial changed to Monroe county, with $10 costs of the motion, and $10 costs of this appeal to the defendants, to be collected on final judgment.
Order affirmed, with costs.
