Majority
p. 18Bracket against Alvord. cited 1 Dunl. 244.
Headnote
Where the action for rent is founded on privity of contract, as between the lessor and lessee, it is transitory; otherwise if on privity of estate, as where an assignee is a party.J. Platt, for the defendant,
moved to change the venue from the county of Onondaga to the county of Oswego. The affidavit upon which be moved was defective in not stating that the defendant’s witnesses residing in the latter county were material as advised by counsel; hut he relied on the action being local. The affidavit stated that it was an action for rent upon a lease given by the plaintiff to the defendant, of lands in Oswego.
J. Edwards, contra,
The distinction is, that where the action for rent is founded on privity of contract, as between lessor and lessee, there the action is transitory; but if on privity of estate, as between the lessor and the assignee of the lessee, or the as
p. 19
signee of the lessor and the lessee, &c. it is local.[1] The motion must he denied.
Motion denied.
(a) (a) Corporation of New York v Dawson, (2 John. Cas. 335,) and the cases there cited.