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Rossie Iron-Works v. Westbrook

13 N.Y.S. 141 Court N.Y. Gen. Term Decision date 1891-01-16 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 141
Rossie Iron-Works v. Westbrook.
(Supreme Court, General Term, First Department.
January 16, 1891.)

Headnote

1. Corporations—Actions—Venue.
The place of residence of a corporation, within the meaning of Code Civil Proc. N. T. § 984, providing that an action must be tried in the county in which one of the parties resided at the commencement thereof, is where its principal business is to be carried on, as designated by its charter, though in fact it may conduct a large part of its business, and have an office, in another county.
2. Change op Venue.
Where such corporation sues in a county other than that designated by its charter as its principal place of business, the court not having jurisdiction otherwise, the defendant is entitled to an order changing the place of trial, under Code Civil Proc. § 985, providing for such change upon the demand of the defendant, followed by the consent of the plaintiff or the order of the court.
Appeal from special term, Yew York county.
Action by Rossie Iron-Works against Charles S. Westbrook. The defendant moved for a-change of the place of trial, on the ground of the non-residence of either party in the county where the action was begun, and from an order denying his motion he appeals. Code Civil Proc. Y. Y. § 984, provides: “An action, not specified in the last two sections, must be tried in the county in which one of the parties resided at the commencement thereof. ” Section 985 provides: “If the county designated in the complaint as the place of trial is not the proper county, the action may notwithstanding be tried therein, unless the place of trial is changed to the proper county, upon the demand of the defendant, followed by the consent of the plaintiff, or the order of the court. ”
Argued before Van Brunt, P. J„ and Brady and Daniels, JJ.
Louis Hasbrouck, (Macgrane Cox, of counsel,) for appellant. Cary c& Whitridge, (Willard Parker Butler, of counsel,) for respondent.

This action was begun by the service of a summons and complaint on the 7th of August, 1890. Within the time limited, a notice of appearance, and a notice of demand to change the place of trial, was served upon plaintiff’s attorney. The defendant was a resident of St. Lawrence county, and the certificate of incorporation of the plaintiff was filed in said county, and in said certificate the name of the town and county in which the principal business of the company was to be carried on was stated to be the town of Rossie and county of St. Lawrence. It appeared that the land, furnaces, and mines of the plaintiff were situate in the counties of St. Lawrence and Jefferson, and that a large part of the business of the company for many years had been carried on exclusively in said county, and that it had an office in Yew York county for the transaction of its financial business. Upon these facts, the motion was denied, and from the order thereupon entered the appeal is taken. We think the conclusion arrived at by the learned judge below was

p. 142
erroneous. The corporation had selected its place o£ residence. It had stated in its certificate of incorporation that its principal place of business was to be in the county of St. Lawrence, and its annual reports were there filed. It could not change this designation of residence, except in the manner prescribed by statute. The mere fact of its having places of business in other parts of the state in no way changed the designation which had been made of its legal'habitation and home. We think, therefore, the motion should have been granted, upon the ground that both parties to the action were residents of St. Lawrence county, and the order should be reversed, with $10 costs and disbursements, and the motion granted. All concur.