Corp. of New York v. Dawson — 2 Johns. Cas. 335

Majority

p. 335

Corporation of New York against Dawson.

Headnote

An action for use and occupation is not local in its nature, being founded in privity of contract and not in privity of estate.

The venue in a cause, in which the corporation of New York was a party, was laid in the city of New York; and the court refused to change it merely on that account, on the bare allegation that an impartial trial could not be had in the city and county of New York.

This was an action of assumpsit, for the use and occupation of certain premises at Brooklyn, in King’s county. The venue was laid in New York, and the defendants moved to change it to Kings. 1. Because, from the declaration, it appeared that the cause of action arose in that county ; and the action, in its nature, is local. 2. Because a fair and impartial trial cannot be had in New York.

jEvertson, for the defendant.

Harison, contra.

This action is founded on the privity of contract, and is not local in its nature. It was, therefore,

not indispensable to lay the venue in Kings. Actions founded on the privity of estate are local, as in debt by the as-, signee or devisee of the lessor, against the lessee, or by the lessor against the assignee of a lease, or in covenant *by the grantee of the reversion, against the assignee of a lease. (1 Wils. 165. 6 Mod. 194. 1 Salk. 80.) In this case, the action is founded on the privity of contract only, either expressed or implied. It follows that the venue is not necessarily controlled by the circumstance of the premises being situated in King’s county.(^[1] ) It is settled, that in transitory actions the court may, and ought, to change the venue for the purpose of an impartial trial. (2 Burr. 1564.) But no special ground is here stated to show that a fair trial cannot be had in New York. The interest supposed to exist in favor of the success of the cor

a a ( a ) See 2 Rev. Statutes of New York, 409; But see Code of Procedure, 103-105.

p. 336

poration is too uncertain and remote. It is, in truth, seldom, if ever, felt or known ; and an independent jury may as probably be obtained in this as in any other county. It would be extremely inconvenient to change the venue, on this formal objection, in all cases in which the corporation may be concerned; and we think it ought not to be' done, unless there appear substantial reasons to support the objection.

Motion denied,(^[2] )

b b (b) See supra, 116, n. (b) to Scott v. Gibbs; Graham’s Practice, 2d ed. 564.