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Chapman v. Wilber

6 Hill & Den. 475 Court N.Y. Sup. Ct. English

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p. 475
Chapman vs. Wilber and another.

Headnote

Actions of trespass and trespass on the case for injuries to the person are local; and the objection that the venue is not laid in the proper county may be taken by demurrer.
Courts take judicial notice of the civil divisions of the state.
Where in a declaration for an assault and battery and false imprisonment, the venue was laid in the city and county of New-York, and the plaintiff alleged that the injuries were done “ at Batavia, to wit, at the city and county of New-York " held, on demurrer, that the cause of action must be presumed to have arisen in the county of Genesee, and that the venue was therefore mislaid.
The declaration was for trespass, assault and battery, and false imprisonment. The venue was laid in the city and county of New-York, and the plaintiff .alleged that the injuries were done “at Batavia, to wit, at the city and county of New-York.” The defendants demurred, on the ground that the venue should have been laid in the county of Genesee.
C. P. Kirkland, for the defendant,
cited 2 R. S. 409, § 2; 12 Wend.51,265; 1 Wils. 165 ; 1 Strange, 469; 1 H. Bl. 356, 7; 3 Bing. 400; 1 Chitty’s Pl. 268, 270, ed. of 1840.
N. Hill,jun. for the plaintiff,
cited 17 Wend. 323 ; 23 id. 484.

Actions of trespass, and on the case, for injuries to the person, are local; (2 R. S. 409, § 2;) and the objection that the venue is not laid in the proper county may be taken by demurrer. ( 12 Wend. 51 , 265.) The court takes notice of the civil divisions of the state; and we know there is a town called Batavia in the comity of Genesee. We know also that there is no town of that name "in the county of New-York where the venue is laid. It is said that the pleader may have meant Batavia in the East Indies, and so the action may be tried in any county. ( 17 Wend. 323 ; 23 id. 484.) But that is not to be intended. The pleader is not at liberty to leave a matter in doubt, and then ask the court to presume in

p. 476
his favor; especially where the probability is against the existence of the fact which he wishes to have presumed.

Judgment for the defendants.[1]

(a) (a) See Watts v. Kinney, (ante p. 82.)

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