Prince v. Weiland

Appellate Terms of the Supreme Court of New York

Prince v. Weiland

124 Misc. 179, 207 N.Y.S. 225, 1924 N.Y. Misc. LEXIS 1059

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 8, 1924

StatusPublished

Cited by1 cases

This text of 124 Misc. 179 (Prince v. Weiland) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Prince v. Weiland, 124 Misc. 179, 207 N.Y.S. 225, 1924 N.Y. Misc. LEXIS 1059 (N.Y. Ct. App. 1924).

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Opinion

Per Curiam:

This action brings up for review an order made transferring the cause of action from the district named in the summons (ninth district, Manhattan) to the seventh district, Manhattan. Defendant moved for the change of venue to the district of his residence, namely, the first district, Bronx, on the ground that the plaintiff did not reside in the ninth district, Manhattan. The affidavit in opposition admits the averments of defendant’s affidavit, but makes a cross motion for the transfer of the action to the seventh district, Manhattan, in which both plaintiff and defendant had their business address, and in which plaintiff resided. Section 17, paragraph 2, of the Municipal Court Code provides:

“ 2. If the action is brought in the wrong district, it may nevertheless remain there unless the defendant demands that it be transferred. Such demand must be made in writing and filed with the clerk before or at joinder of issue and must specify the district to which the defendant desires the action to be transferred and facts under oath showing that such district is the proper one. The Court must thereupon transfer the action to the proper district, and may in its discretion impose five dollars costs against the plaintiff.”

The corresponding section in regard to the place of trial of Supreme Court actions (Civ. Prac. Act, § 186) has been construed as meaning that where plaintiff brings suit in the wrong county the defendant may insist that it be removed to the county of his residence. (Ferrin v. Huxley, 94 App. Div. 211; Loretz v. Metropolitan St. R. Co., 34 id. 1.)

We believe that the practice in the Municipal Court should be made to conform to this rule.

Judgment and order reversed and a new trial ordered in the first district, borough of The Bronx, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.

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Per Curiam:

This action brings up for review an order made transferring the cause of action from the district named in the summons (ninth district, Manhattan) to the seventh district, Manhattan. Defendant moved for the change of venue to the district of his residence, namely, the first district, Bronx, on the ground that the plaintiff did not reside in the ninth district, Manhattan. The affidavit in opposition admits the averments of defendant’s affidavit, but makes a cross motion for the transfer of the action to the seventh district, Manhattan, in which both plaintiff and defendant had their business address, and in which plaintiff resided. Section 17, paragraph 2, of the Municipal Court Code provides:

“ 2. If the action is brought in the wrong district, it may nevertheless remain there unless the defendant demands that it be transferred. Such demand must be made in writing and filed with the clerk before or at joinder of issue and must specify the district to which the defendant desires the action to be transferred and facts under oath showing that such district is the proper one. The Court must thereupon transfer the action to the proper district, and may in its discretion impose five dollars costs against the plaintiff.”

The corresponding section in regard to the place of trial of Supreme Court actions (Civ. Prac. Act, § 186) has been construed as meaning that where plaintiff brings suit in the wrong county the defendant may insist that it be removed to the county of his residence. (Ferrin v. Huxley, 94 App. Div. 211; Loretz v. Metropolitan St. R. Co., 34 id. 1.)

We believe that the practice in the Municipal Court should be made to conform to this rule.

Judgment and order reversed and a new trial ordered in the first district, borough of The Bronx, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.

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Bluebook (online)

124 Misc. 179, 207 N.Y.S. 225, 1924 N.Y. Misc. LEXIS 1059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prince-v-weiland-nyappterm-1924.

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