Majority
Headnote
t. Place of trial of action against officer.] An action in which the complaint incidentally demands judgment against the sheriff for damages for a wrongful levy, is none the less an action against him for an act done in virtue of his office, under the rule as to place of trial, because of the fact that the principal relief sought is to , restrain the sale of the property levied upon.The objection is taken on behalf of the plaintiff that this is not an action against the sheriff of Albany county for an act done in virtue of his office, because the principal relief sought is to restrain the sale of the property levied upon. This objection cannot be sustained, because the complaint demands judgment against the sheriff' for damages alleged to have been sustained by the plaintiff by reason of the levy.
There is, however, another objection which seems to me-to be fatal to the motion. The action is brought not only against John W. Hart, as sheriff of Albany county, but also-against the defendant, Speir, as receiver of the U. S. S. S. Co., and against that company itself. Said receiver resides- and was appointed in Hew York city, and, under section 984 of the Code, it is his right to have the case remain and be tried here. It does not seem to me that section 983 of the Code applies to a case where a public officer is not the sole defendant, but is sued with other defendants, who-reside in a county different from that in which such officer resides.[1]
* The provisions of the Code relating to the place of trial are embraced in §§ 982-984. Those sections are as follows : *357 § 982. “ Each of the following actions must be tried in the county in which' the subject of the action, or some part thereof, is situated: an action of ejectment; for the partition of real property; for dower to foreclose a mortgage upon real property or upoh a chattel real; to compel the determination of a claim to real property ; for waste; for a nuisance; or to procure a judgment, directing a conveyance of real property; and every other action to recover or to procure a judgment, establishing, determining, defining, forfeiting, annuling, or otherwise affecting an estate, right, title, lien or other interest, in real property, or a chattel real. But where all the real property, to which the action relates, is situated without the State, the action must be tried, as prescribed in section 984 of this act.” § 983. “ An action for either of the following causes must be tried in the county, where the cause of action, or some part thereof, arose: 1. “To recover a penalty or forfeiture, imposed by statute, except that, where the offence, for which it is imposed, was committed on a lake, river, or other stream of water, situated in two or more counties, the action may be tried in any county, bordering on the lake, river or stream, and opposite to the place where the offense was committed. 2. “Against a public officer, or a person especially appointed to execute his duties, for an act done, in virtue of Ms office, or for an omission to perform a duty, incident to his office; or against a person, who by the command or in the aid of a public officer, has done anything touching his duties. 3. “To recover a chattel distrained, or damages for distraining a chattel.” § 984. “An action, not specified in the last two sections, must be tried in the county in which one of the parties resided at the commencement thereof. If neither of the parties then resided in the State, it may be tried in any county, which the plaintiff designates for that, purpose, in ‘ the title of the complaint.’ ”