Majority
p. 758(53 Misc. Rep. 369.) WALSH v. MARONEY. (Supreme Court, Special Term, Kings County. March, 1907.)
Headnote
Venue—Unlawful Detention of Milk Can.Where an agent, residing in Queens county, brought an action to recover penalty for unlawful detention of a milk can against defendant, residing in Kings county, in Madison county, where the owner of the property involved resided, defendant, under Laws 1902, p. 1135, c. 482, authorizing such action, may require the place of trial to he changed to Kings county.
Action by John G. Walsh against Thomas E. Maroney. On motion for change of venue.
Granted.
Martin Byrne, for plaintiff. .
Hamilton Anderson, for defendant.
Without passing on those provisions of the act of 1902. (Laws 1902, p. 1135, c. 482) which permit an agent to sue in his name, although not the party in interest, I shall hold that the clause reading, “Such action may be brought in a court of record having jurisdiction thereof and the place of trial thereof may be laid in the county where such owner, dealer or shipper resides at the commencement thereof,” means those actions where the owner, dealer, or shipper is a party plaintiff. It does not refer to a case like this. The owner of the milk can in this case, it is alleged, resides in Madison county; the plaintiff,
p. 759
the alleged agent, it is stated and conceded by his counsel, resides in Queens county; the defendant, in Kings county. As the action could not be properly brought in Madison county, the defendant could properly move for change of venue in the proper county, as he has done; and his motion is granted, with $10 costs of this motion.
Motion granted, with $10 costs.