Ely v. Lowenstein — 9 Abb. Pr. 42

Majority

p. 42

ELY against LOWENSTEIN.

[No. 2 of this name.]

Supreme Court, Seventh District; Special Term,

May, 1870.

Headnote

Cause oe Action. — Place of Teial. — Local Actions. .

An action to rescind a contract for the purchase of land, on the ground of fraud, is not. “ an action for the recovery of real property, or of an estate or interest therein, or'for the determination in any form of such right or interest,” within the meaning of the provisions of the Code of Procedure, relative to local actions, and the changing of the place of trial.

The question to be litigated in such an action is the same as if the contract related to the sale of personal property; and the fact that the judgment may incidentally affect some right or interest of the parties in real estate, does not bring the case within the statute.

The words “for the determination in any form of such right or interest,” mean the dirhct and specific determination in form and substance upon the cause of action alleged, and not an incidental effect.

Motion to change place of trial.

This was a third motion in the same action as those last above reported, and was heard at the same time. The ground relied on for the motion was that the action, the nature of which is stated in the preceding reports, was a local action relating to real property in the city of New York.

Samuel J. Crooks, for the defendants.

George T. Spencer, for the plaintiff.

This is not an action for the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest. The action is one of equitable cognizance, to determine the validity of a contract between the plaintiff and the defendant Steigler, and of a certain due bill given by the former to the latter in part performance of such contract.

The contract, to be sure, relates to the sale and purchase of an interest in real estate, which estate is situate in the city of New York, to which city the place of trial is sought by this motion to be changed.

But that is of no consequence, as the question to be litigated is the same precisely that it would be if such contract related to the sale of personal property, or to any other right or interest. The contest is about the contract, and not the quantum of interest acquired through or by means of it. The judgment would determine only whether there was any such contract subsisting and in force. The cause of action is no more one for the recovery of real estate, or the determination of a right or interest therein, than it would have been had the action been brought in some county other than the city and county of New York, to recover an installment due on the contract.

The inquiry is, what is the cause of the action ? Is it an alleged fraud which vitiates the contract % or is it an alleged right or interest growing out of the contract that is to be tried and determined ? The two things are essentially and radically different, and it is only by confounding them that this can be made to appear a local action. This principle is fully established in the cases of Rawls v. Carr ( 17 Abb. Pr., 96 ), and Hubbell v. Sibley (4 Abb. Pr. N. S., 403).

The question is not to be determined, nor the determination in any degree influenced, by the effect which a judgment may or may not have incidentally, and as

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a secondary result, upon some right or interest of the parties in real estate.

Great stress is laid upon the expression, <(for the determination in any form of such right or interest.” This clearly means, the direct and specific determination in form and substance, upon, or according to, the cause of action alleged, and not some effect, more or less remote, which may. flow as an incident from such determination.

The motion must, therefore, be denied, with costs.