Packard v. Hesterberg

New York Supreme Court

Packard v. Hesterberg

48 Misc. 30, 96 N.Y.S. 72

DecidedJuly 15, 1905

StatusPublished

This text of 48 Misc. 30 (Packard v. Hesterberg) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Packard v. Hesterberg, 48 Misc. 30, 96 N.Y.S. 72 (N.Y. Super. Ct. 1905).

Pincite

Opinion

Wright, J.

The complaint alleges that the defendant as sheriff of Rings county neglected for a period of more than nine months to seize certain chattels located in Rings county as commanded by a warrant of seizure, granted by the county judge of Onondaga county, and that said sheriff failed to make a return to the county of Onondaga.

The motion to change the place of trial from Onondaga county to Rings county must be granted.

The alleged failure to seize the chattels constitutes a cause of action arising in Kings county, which, therefore, must be tried in that county. Code Civ. Pro., § 983.

The inventory must be filed in the county where the property is attached (Id., § 654), that is, in Kings county. The complaint does not allege that this has not been done.

The objection to the affidavit of merits is not forceful. Change of place of trial to the county where the statute requires it to be tried, may be asked as a matter of right, and an affidavit of merits is unnecessary. Iron National Bank v. Dolge, 46 App. Div. 327.

Motion granted, with costs.

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