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Bell v. Polymero

99 A.D. 303 Court N.Y. App. Div. Docket No. 1 English

Delivered by McLaughlin, J.:

Contents

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Sidney Bell, Appellant, v. Demetrius Polymero and Apostolo K. Ringa, Doing Business as The Greek Restaurant, Respondents.[1]
No. 1.

Headnote

Venue— Orange county in the summons and New York county in the complaint— what proceedings on the part of the defendant in Orange county preclude his claiming that the venue was in New York county —action to recover penalties for an unauthorized me and possession of milk cans— Code Civil Procedure, § 983.
An action, brought pursuant to section 29 of chapter 376 of the Laws of 1896 to recover penalties for an unauthorized use and possession of milk’ cans, was commenced by the service of a copy of the summons, which stated that trial was desired in Orange county. The defendants served a notice of appearance, which did not name any county. A copy of the complaint was then served, which was entitled Supreme Court, county of New York. The day following the service of the complaint the defendants’ attorney served an affidavit and order requiring the plaintiff to give security for costs, both of which were entitled Supreme Court, Orange county. The plaintiff having failed to comply with an order requiring that security be given, a motion was made to dismiss the complaint, and the affidavit used for that purpose, as well as the notice of motion, was entitled Supreme Court, Orange county. Such motion, which was made returnable at a Special Term held in the second judicial district, resulted in an order excusing the plaintiff’s failure to serve the undertaking for costs on certain terms.
In compliance with the order the plaintiff filed an undertaking for costs with the clerk of Orange county, and served a copy, with notice of filing, upon the defendants’ attorney, which was entitled Supreme Court, Orange county. The defendants’ attorney then served a notice of exception to the sureties upon
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the undertaking which was entitled Supreme Court without naming any county. The plaintiff then served a notice of justification which stated the venue as Orange county and that the sureties would justify before the county judge of that county. The sureties did so justify and the undertaking was approved and filed with the clerk of Orange county. Thereafter the defendants served an answer entitled Supreme Court without naming any county.
Upon an appeal from an order made at the New York Special Term requiring the plaintiff to accept a notice of trial for New York county, and fixing that county as the place of trial, it was
Held, that the rule, that where there is a difference between the summons and complaint as to the place of trial, the complaint controls, is subject to the exception that, where it appears that the statement of a different place of trial in the complaint from that named in the summons was due to the inadvertence of the plaintiff’s attorney, the place of trial is not changed to the county named in the complaint provided the plaintiff’s attorney moves promptly in the matter to correct the error, so as not to permit his adversary to presume that the change was intentional;
That the case at bar fell within the exception to the above rule, and that it was not necessary for the plaintiff, after the steps taken by the defendants, to take any steps to correct the error which had been made by his attorney’s inadvertence in designating New York county in the complaint as the place of trial;
That, as the statute under which the action was brought provides that the venue may be laid in the county where the owner of the milk cans resides at the time of the commencement' of the action, which in the present case was Orange county, there was no force in the suggestion that the action being for a penalty, it was necessary for the plaintiff, under section 983 of the Code of Civil Procedure, to bring it in New York county;
That it was the duty of the defendants’ attorney, if he believed that Orange county was not the proper county for the trial of the action, to make his motion to change the venue in Orange county or in the second judicial district and not in the county of New York.
Appeal by the plaintiff, Sidney Bell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1904, granting the defendants’ motion to compel the plaintiff to accept a notice of trial for New York county and fixing said county as the place of trial of the action.
Louis H. Levin, for the appellant.
Albert W. Ransom, for the respondents.

This action was brought to recover penalties provided for in section 29 of the Domestic Commerce Law (Laws of 1896, chap. 376,

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as amd. by Laws of 1902, chap. 482) for an alleged unauthorized use and possession of milk cans. It was commenced by the service of a copy of the summons, which stated that the place of trial was desired in Orange county. Subsequently the defendants appeared in the action and demanded a copy of the complaint. In the notice of appearance no county was named. In compliance with the demand a copy of the complaint was served and the action was entitled Supreme Court of the State of Hew York, county of Hew York.

On the day following the service of a copy of the complaint defendants’ attorney served upon the plaintiff’s attorney an affidavit and order requiring security for costs, both of which were entitled Supreme Court, Orange county. The order not having been complied with, a motion was made to dismiss the complaint and the affidavit used for that purpose, as well as the notice of motion, were entitled Supreme Court, county of Orange, and the motion was made returnable at a Special Term held in the second judicial district. The motion resulted in an order excusing the plaintiff’s default in serving the undertaking on payment of ten dollars costs and requiring an undertaking to be served within a time named and extending defendants’ time to answer or demur until ten days after such undertaking had been given. In compliance with this order an undertaking was given and filed with the clerk of Orange county and a copy served with notice of filing upon the defendants’ attorneys, which was entitled Supreme Court, Orange county. The defendants’ attorneys served a notice of exception to the sureties, which was entitled Supreme Court, no county being named. Hotice of justification of the sureties was served in which venue was named as Orange county and which stated that the sureties would justify before the county judge of that county at a time and place named, which they did, and the undertaking was approved and filed with the clerk of Orange county. Thereafter the defendants answered, in which the action was entitled Supreme Court, no county being named. The defendants then served their notice of trial in which it was stated that the issues involved would be brought to trial in Hew York county. This notice was returned upon the ground that the action was not at issue in Hew York county. The defendants then made a motion

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to compel the plaintiff to accept the notice of trial and to fix New York county as the place of trial. The motion resulted in an order requiring the acceptance of the notice of trial and fixing New York county as the place of trial. It is from this order that the plaintiff appeals.

The learned justice sitting at Special Term, as appears from a memorandum handed down at the time the motion was decided, seems to have been of the opinion that the place of trial, while originally named in the summons as Orange county, was changed to the county of New York, inasmuch as that county was named in the complaint. If nothing else had appeared in the motion papers, his conclusion would have been correct. It seems to be settled that where there is a difference between the summons and complaint as to the place of trial, the latter controls. To this effect is Rector v. Ridgwood Ice Co. ( 38 Hun, 293 ); McCosker v. Smith (20 Civ. Proc. Rep. 324; S. C. affd., 133 N. Y. 672 ). These cases were cited with approval in Fisher v. Ogden ( 12 App. Div. 602 ). But while this is the general rule, there is a well-recognized exception to it and that is, where it appears that the county named in the complaint as the place of trial is different from that named in the summons, and such act was merely an inadvertence, then the place of trial is not changed, provided the plaintiff’s attorney moves promptly in the matter to correct the error, so as not to permit his adversary to presume the change was intentional. To this effect is Goldstein v. Marx ( 73 App. Div. 545 ) and Tolhurst v. Howard (94 id. 439).

The rule and the exception are stated by Hr. Justice Ingraham in the last case cited as follows: “ It would appear, therefore, that it is the settled practice that the service of a complaint subsequent to the service of the summons, stating a different place of trial from that stated in the summons, changes the place of trial to the county named in the complaint and that thereafter the action is pending in the county named in the complaint unless it appears that the insertion of the place of trial in the complaint was an inadvertence and the plaintiff promptly takes steps to correct the error before the defendant has acted in reliance upon the change of place of trial.” Here, upon the facts above stated, it is apparent that the defendants* attorney was not misled, but he acted upon the assumption that the naming of a different county in the complaint from that specified

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in the summons was an act of inadvertence and was not intended to change the place of trial. All the proceedings taken by both parties in the action after the service of the complaint were in Orange county or in the second judicial district, including the motion to dismiss the complaint for plaintiff’s failure to give the undertaking required, and which resulted in imposing upon him, for defendants’ attorney’s benefit, the payment of ten dollars costs, which presumably he accepted, inasmuch as the terms of the order were subsequently complied with. Both parties having recognized and acted upon the assumption that New York county was not the place of trial, we do not think the mere fact that such county was named in the complaint changed the place of trial; on the contrary, it brought the case under the exception to the rule above alluded to and did not require, after defendants’ subsequent proceedings in the action, that the plaintiff should take any steps to correct the error which had been made by reason of his attorneys’ inadvertence.

It is also suggested that the action being to recover a penalty, New York county is the proper place for the trial, under section 983 of the Code of Civil Procedure, but there is no force in the suggestion. This section does not apply to an action of this character. The section of the statute under which the action is brought provides that the place of trial may be laid in the county where the owner of the milk cans resides at the time of the commencement thereof. Here, the owner of the milk cans, as appears, resides in Orange county and in addition to this, if the defendants’ attorney entertained the idea that Orange county is not the proper county for the trial of the action, then a motion should be made in that county or in the second judicial district, and not in the county of New York, to change the same.

For these reasons it seems to me the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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