123.]

PLACE OF TRIAL OF CIVIL ACTIONS.

4. For the recovery of personal preperty, distrained for any

cause.

5. For injuries to the person or personal property:

6. For the recovery of a penalty or forfeiture imposed by statute: except, that when it is imposed for an offense committed on a lake, river or other steam of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or steam, and opposite to the place where the offense was committed:

7. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who by his command or in his aid, shall do anything touching the duties of such officer.

Questions.

3. Q. Can the place of trial of an action to have a deed of lands made by the defendant, declared void for fraud, be changed as a matter of right?

4. Q. Is this section applicable to actions in personam, affecting lands situated in another state or county?

5. Q. Does this section apply to the trial of actions for the conveyance of lands in this state, or that lands are held subject to the rights of the plaintiff, or that the defendant holds the lands fraudulently?

6. Q. In an action to foreclose a mortgage, must the trial be had in the county where the mortgaged premises are situated, or in the county where the money was loaned and the cause of action arose?

7. Q. To what extent does this section apply to actions in the superior court of the city and county of New York?

8. Q. To what extent does this section apply to actions in the court of common pleas for the city and county of New York?

9. Q. To what extent does this section apply to actions in mayors' and recorders' courts, of the several cities in this state?

3. Q. Can the place of trial of an action to have a deed of lands made by the defendant, declared void for fraud, be changed as a matter of right?

A. In Starks agt. Bates, 12 How., 465, Special Term, December, 1854, MITCHELL, J., it was decided, that in an action affecting the title to lands e. g., to have a deed from one defendant to another declared void for fraud, the court may change the place of trial as matter of right. And where one of the defendants makes default, and it appears that he is assisting the plaintiff against his co-defendant, the latter may move alone for a change of the place of trial.

4. Q. Is this section applicable to actions in personam, affecting lands situated in another slate or county?

A. In Newton agt. Bronson, 3 Kern., 587, March, 1856, DENIO, Ch. J.. it was decided, that the supreme court may compel the specific performance, by a resident of this state, of a contract for the conveyance of land lying without its jurisdiction. And this jurisdiction is not taken away by this section of the Code, which requires that actions for the recovery of real estate or an interest therein, or for the determination of a right or interest in real property, must be tried in the county where the land lies. This provision is not applicable when land, which is the subject of the action, lies out of the state.

In Mussina agt. Belden, 6 Abb., 165, Special Term, February, 1858, DAVIES, J., it was decided, that the supreme court of this state has also jurisdiction of an action for a fraud

ulent conspiracy, formed by the defendants in another state, to divest the plaintiff of his title to lands in that state, when the relief sought is damages for the wrong, and an accounting and payment of rents and profits. And this section of the Code is inapplicable for the same reason as mentioned in the preceding case, to wit: that the lands in question are situated without the state.

In Gardner agt. Ogden, 22 N. Y. R., 333, December, 1860, DAVIES, J., it was decided, that the supreme court has jurisdiction to compel the conveyance, by a defendant who has appeared in the suit, of land in a foreign state. And this section of the Code for the same reason above stated, is inapplicable to such a case.

5. Q. Does this section apply to the trial of actions for the conveyance of lands in this state, or that lands are held subject to the rights of the plaintiff, or that the defendant holds the lands fraudulently?

A. In Ring agt. McCoun, 3 Sandf., 528, General Term, April, 1850, SANDFORD, J., it was decided, that an action brought to compel the conveyance of a farm, in this state, on the ground that the defendant held it in trust for one who had conveyed it to the plaintiff, is an action for the recovery of real property, and under this section of the Code, must be tried in the county where the farm is situated. It is also an action for the determination of an estate, right or interest in real property, and as such must be tried in the county where the property is situated.

In Mairs agt. Remsen and others, 3 Code R., 138, Special Term, October, 1850. EDWARDS, J., it was decided, that a complaint which asks that it may be adjudged, that certain lands are held subject to the rights of the plaintiff, is within the provisions of the latter clause of this section. And a demand to have the trial in the proper county, may be made at the time of putting in the answer.

In Wood agt. Hollister, 3 Abb., 14, Spicial Term, April, 1856, DAVIES, J., it was decided, that an action brought to procure the judgment of the court, that a conveyance of land made by the defendant is fraudulent, that another defendant holds the land fraudulently, and that he be declared to hold it in trust for the plaintiff, is an action for the determination of an interest in real property, and must be tried in the county where the land or some part thereof is situated. But in Rauls agt. Carr, 17 Abb., 96, General Term, December, 1863, under this question, there was a decision, without any opinion given, which seems to conflict with the above; but it can hardly be said to be in a shape, as reported, to give it the sanction of authority.

6. Q. In an action to foreclose a mortgage, must the trial be had in the county where the mortgaged premises are situated, or in the county where the money was loaned and the cause of action arose ?

A. In Miller agt. Hull, 3 How., 325, Special Term, November, 1848, PARKER, J., it was decided, that in an action for the foreclosure of a mortgage, the " proper county" for the place of trial is where the mortgaged premises are situated, although the money may be loaned and the mortgage executed and delivered to the mortgagee in another county: where the plaintiff seeks to foreclose a mortgage, the loan of the money must be consid ered in connection with the lien on the land; and the cause of action cannot be complete without a lien in the county where the land is situated.

7. Q. To what extent does this section apply to actions in the superior court of the city and county of New York?

A. The answer to this question will be found in section 33, ante.

8. Q. To what extent does this section apply to actions in the court of common pleas for the city and county of New York?

A. The answer to this question will be found in section 33, ante.

9. Q. To what extent does this section apply to actions in mayors' and recorders' courts of the several cities of this state?

A. The answer to this question will be found in section 33, ante

What is the result of the decisions under this section?

1. (3 Q.) In an action to have a deed of land from one defendant to another declared void for fraud, the court may change the place of trial as a matter of right.

2. Where one defendant makes default, and it appears that he is assisting the plaintiff against his co-defendant, the latter may move alone for a change of the place of trial.

§ 124.]

PLACE OF TRIAL OF CIVIL ACTIONS.

3. (4 Q.) A specific performance of a contract made by a resident of this state, for the conveyance of land lying without the state, may be decreed by the court.

4. The provision in this section requiring actions for the recovery of real estate, &c., to be tried in the county where the land lies, is not applicable when the land, which is the subject of the action, lies out of the state.

5. The supreme court has jurisdiction of an action for damages and an accounting, &c., for a fraudulent conspiracy, formed by the defendants in another state, to divest the plaintiff of his title to lands in that state. This section is inapplicable to such a case.

6. The supreme court has jurisdiction to compel the conveyance, by a defendant who has appeared in the action, of land in another state. This section of the Code is inapplicable to such a case.

7. (5 Q.) An action to compel the conveyance of land in this state, on the ground that the defendant.held it in trust for one who had conveyed it to the plaintiff, comes under this section, and must be tried in the county where the land is situated.

8. A complaint which asks that it may be adjudged that certain lands are held subject to the rights of the plaintiff, is within this section.

9. A demand to have the trial in the proper county, under this section, may be made at the time of putting in the answer.

10. An action to procure the judgment of the court that a conveyance of land made by the defendant is fraudulent, that another defendant holds the land fraudulently, and that he be declared to hold it in trust for the plaintiff, comes within the provisions of this section, and must be tried in the county where the land or some part thereof is situated.

11. (6 Q.) An action for the foreclosure of a mortgage, must be tried in the county where the mortgaged premises are situated, although the money may be loaned and the mortgage executed and delivered in another county.

$124. Other actions, where the cause or some part thereof

arose.

Actions for the following causes must be tried in the county where the cause or some part thereof arose, subject to the like power of the court to change the place of trial in the cases provided by statute:

1. For the recovery of a penalty or forfeiture imposed by statute, except that, when it is imposed for an offense committed on a lake, river or other stream of water, situated in two or more counties, the action may he brought in any county bordering on such lake, river or stream, and opposite to the place where the offense was committed;

2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who by his command, or in his aid, shall do anything touching the duties of such officer.

This section was first made in 1849 as a distinct section. In 1848 section 103 embraced what are now substantially sections 123 and 124, as will be seen by a reference to section 123, ante.

1. Q. When is a public officer entitled to the protection of the statute which requires actions against him to be brought in his own county, and when does he waive the benefit of this provision?

A. In Harland agt. Willetts, Sheriff of Queens County, 5 Sandf., 222, General Term, November, 1851, MASON, J., it was decided, that a public officer, when sued for an official act, may raire the benefit of the statutory provision that, unless it appears upon the trial that the act was done within the county where the trial was had, the jury shall be discharged, and a judgment of discontinuance be entered. It is upon the trial that the objection must be raised, and the omission of the defendant to raise it then is to be regarded as a waiver, by which he is concluded.

In Brown agt. Smith and others, 24 Barb., 419, General Term, April, 1857, BACON, J., it was decided, that where the act of a public officer is of such a nature that his office gives him no authority to do it, he is not protected by the section of the statute which requires suits against him to be brought in his own county; but where, in performing an act within the scope of his authority, he commits an error, or even abuses the confidence which the law reposes in him, he is still entitled to the protection of such statute 2. Q. Does this section apply to actions brought by the attorney general in the name of the people and to an action for false imprisonment against the superintendent of the Albany county penitentiary?

A. In The People agt. Hayes and others, 7 Hor., 249, Special Term, November, 1852, HAND, J., it was decided, that an action against a public officer, sued for an act done by him by virtue of his office, must be tried in the county where the cause of action arose, unless changed for causes specified in the statute. And this is so, although the suit is brought by the people and prosecuted by the attorney general of the state. In personal actions, sued by the attorney general, the king could sue in any county he pleased; and the people of this state have succeeded to the rights of the crown. But this rule has been here modified by statute Regard, however, should still be had to the opinions of the attorney general and other public officers, acting for the state, as to what will be for the public interest. Commissioners appointed by the act of the legislature, to lay out and build a road for the use of the public, aue public officers. An office is a public charge or employment; and every office is considered public, the duties of which concern the public.

In Porter agt. Pillsbury, 11 How., 240, Special Term, July, 1855, DEAN, J., said: The defendant is the superintendent or principal keeper of the Albany county penitentiary, and is a resident of the county of Albany; and the complaint charges expressly that all the illegal acts of the defendant were done in the county of Albany. This motion is made to change the place of trial from Dutchess to Albany county. It cannot be granted on the ground of the convenience of witnesses, because, from the affidavits and the nature of the issue to be tried, it is evident that but few witnesses will be needed on either side, and probably as many of those really necessary reside in Dutches as in Albany county. But the motion must be granted on the ground that the defendant is a public officer. He has the charge of a public institution. The position that he holds is, in the act establishing the penitentiary (Laws of 1844, ch. 152) denominated an "office,' and the person who fills it is called an "officer." The defendant is, therefore, within the reason and language of section 124 of the Code (People agt. Hayes, 7 How. 248).

What is the result of the decisions under this section?

1. (1 Q.) When a public officer is sued for an official act, he may waive the benefit of the provision of the statute, that unless it appears at the trial that the act was done within the county where the trial is had, the jury shall be discharged and a judgment of discontinuance entered.

2. The omission of the defendant to raise at the trial the objection that the act for which he is sued was not done within the county, will be considered a waiver of the objection.

3. Where the act of a public officer is of such a nature that his office gives him no authority to do it, he is not protected by the statute requiring suits to be brought against him in his own county

4. Where a public officer, in performing an act within the scope of his authority, commits an error, or abuses the confidence which the law reposes in him, he is entitled to the protection of such statute.

5. (4 Q.) Where a public officer is sued for an act done by him by virtue of his office, it must be tried in the county where the cause of action arose, although brought by the attorney general on behalf of the people.

6. An office is a public charge or employment; and every office is considered public, the duties of which concern the public.

7. An action for false imprisonment and assault and battery against the superintendent of the Albany county penitentiary must be tried in that county, he being a public officer, within the meaning of this section.

§ 125. Other actions according to the residence af the parties. (Same as § 104 in 1848.)

In all other cases, the action shall be tried in the county in which the parties, or any of them, shall reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial in the cases provided by statute.

Questions.

2. Q. Did the judiciary act of 1847, requiring the venue to be laid in a county where some of the parties resided, mean parties to the record or parties in interest?

3. Q. Should a majority of witnesses sworn to by either party as necessary, nccessarily con trol the place of trial?

4. Q. Is an action by the wife for a limited divorce to be tried in the county where she actu ally resides, without regard to the maxim that the domicil of the wife follows that of the husband?

5. Q. In an action by the people in the nature of a quo warranto, can the place of trial be properly laid in any county in the state?

6. Q. Is a railroad company to be treated as an inhabitant of each county where its track is laid, so that it may be sued before a justice of the peace in either county?

7. Q. Are insurance companies and other corporations created under the laws of this state to be considered residents of the county where their office is located and their general business carried on, so as to demand a trial in such county?

2. Q. Did the judiciary act of 1847, requiring the venue to be laid in a county where some of the parties resided, mean parties to the record or parties in interest?

4. In Hart agt. Oatman. 1 Barb., 229, Special Term, October, 1847, EDMONDS, J., it was decided, that the section of the judiciary act of 1847 which required the venue to be laid in a county where some of the parties resided meant parties in interrst, and not the nominal parties to the record. But the Code now requires all actions to be prosecuted in the name of the real party in interest.