New York Central Railroad v. Lefkowitz

After this action had been brought in Supreme Court, Westchester County, defendants Attorney-General and Public Service Commission moved under subdivision 1 of section 187 of the Civil Practice Act to change the place of trial to Albany County. The motion was denied at Special Term. The Appellate Division, after unanimously affirming the order below, granted defendants leave to appeal to us, certifying a question of law as' to the propriety of its affirming order and certifying also that its affirmance was “ solely on the law and not in the exercise of discretion ”. It is clear that there is not a dispute as to convenience of witnesses (Civ. Prac. Act, § 187, subd. 3). The State’s position is and has been that plaintiffs had no right to sue in any county except Albany and its main reliance is on section 879 of the Civil Practice Act which reads thus: “ Where a duty is imposed by statute upon a state officer or board of state officers, an injunction order to restrain him or them, or a person employed by him or them, from the performance of that duty, or to prevent the execution of the statute, shall not be granted except by the supreme court at a term thereof sitting in the department in which the officer or board is located, or the duty is required to be performed; and upon notice of the application therefor to the officer, board or other person to be restrained.”

Defendants say that a trial in Westchester County where none of the 10 plaintiff railroads has an executive or principal office (although 2 of them run trains through that county) would violate section 182 of the Civil Practice Act which requires a Supreme Court action to be tried “ in the county in which one of the parties resided at the commencement thereof ”. Also, they point to still another Civil Practice Act section (§ 1287) as containing an express requirement that proceedings against

Special Term rejected each of defendants’ positions. It held that since two of the plaintiff railroad companies operated their lines through Westchester County they were, under settled practice, to be considered as resident in that county for venue purposes. This holding seems correct under a long line of authorities including Poland v. United Traction Co. ( 177 N. Y. 557 ) and Polley v. Lehigh Val. R. R. Co. ( 200 N. Y. 585 ) where this court by answering certified questions concurred in Appellate Division rulings that a railroad company for venue purposes is to be considered a resident of every county through which its line passes. The railroad companies in the Poland and Polley cases were defendants, not plaintiffs, and no one has turned up a case where the rule has been applied to a railroad company plaintiff, but no reason appears for refusing to make such application. There is no difficulty, therefore, in agreeing with so much of the Special Term opinion in the present case as found compliance with section 182 of the Civil Practice Act.

There is more doubt as to the answer to the second half of the question, that is, as to whether under sections 879 and 1287 of the Civil Practice Act, read singly or together, the State is correct in its insistence that Albany is the only proper county for the trial of this action. The suit is brought by 10 railroads for a declaratory judgment that sections 5á-a, 54-b and 54-c of the Railroad Law (full crew laws) are unconstitutional and for a permanent injunction restraining further enforcement of any of the three statutes. No temporary injunction has been sought. Special Term held that section 879 of the Civil Practice Act, above quoted, refers to temporary injunctions only and means no more than that a temporary injunction to restrain State officers, boards or employees from performing their statutory duties shall be granted by the Supreme Court in that Judicial Department only where the officer or board is located or the duty is required to be performed. Section 879 could, of course, be read as referring to the trial of a suit like the present one where the prayer for judgment includes a request for a temporary injunction as incidental relief. However, we think the true rule is that stated in Lawson Co. v.

Section 1287 of the Civil Practice Act is not helpful to defendants since it is a part of article 78 of the Civil Practice Act and obviously refers not to actions but to statutory proceedings in the nature of certiorari, mandamus and prohibition.

The order appealed from should be affirmed, with costs, and the certified question answered in the affirmative.

Judges Dye, Fuld, Yah Yoorhis, Bubke, Foster and Scileppi concur.

Order affirmed, etc.