Majority
p. 97LELAND against HATHORNE. Court of Appeals, June Term, 1870.
Headnote
Appealable Obdek.—Place oe Tbial.—Local Actioe.An action of an equitable nature, to enjoin the erection of a bridge across a street, on account of apprehended injury to the plaintiff’s premises thereon, is an action which must be tried in the county where the property is situated, under subdivision 123 of the Code of Procedure, for it is an action for an injury to real property.[1]
Under subdivision 4 of section 11 of the Code of Procedure, as amended in 1870,-—which does not, as formerly, merely regulate the mode of hearing certain appeals, but gives an appeal in the cases specified in the subdivision as it now stands,-—an order refusing to change the • place of trial, in a case where, by the Code of Procedure, the party is entitled to it, is the subject of an appeal to this court.[2]
Appeal from an order
This action was brought by Warren Leland against Henry H. Hathorne. The object of the action was to enjoin the defendant from building a bridge which plaintiff claimed would be a public nuisance and injurious to plaintiff’s real property. The property, and the site of the proposed bridge, were in the county of
p. 98
Saratoga. The place of trial of the action, specified in the plaintiff’s complaint, was the county of Westchester. The defendant, after a demand for a change of the place of trial, which was refused by plaintiff, moved for an order directing the change, which having been denied at general term, the defendant appealed to this court.
Samuel Hand, for the appellant.
R. Cochran, for the respondent.
The order was held to be appeal-able under subdivision 4 of section 11, and the cause of action was held to be local, and one that must be tried in the county where the premises are situated.
The only opinions read were those of two members of the .court who dissented, being of opinion that the action was not local.
Sutherland, Hunt, Foster, Ingalls and Smith, ' JJ., concurred in the opinion that the order was appealable.
Hunt, Grover, Foster, Smith and Sutherland, JJ., concurred in the opinion that the cause of action was an apprehended injury to real property within subdivision 1 of section 123 of the Code.
Order reversed, with costs, arid motion granted to •change the place of trial to Saratoga county.