Freeman v. Thomson — 3 N.Y.S. 93

Majority

p. 93

Freeman v. Thomson.

(Supreme Court, General Term, Third Department.

November 20,1888.)

Headnote

Venue in Civil Cases—Local Actions—Trespass Quare Clausum.

Code Civil Proc. N. Y § 982, enumerates the actions which shall be tried in the county in which the subject of the action is situated, and, among them, waste and nuisance, and provides that every other action which shall be for a judgment establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, or interest in real property, shall be tried in such county Code Proc. § 123, for which the preceding section was substituted, enumerates among the local actions those for injuries to real property. Held, that an action of trespass quare clausum is within the statute, and local.

p. 94

Appeal from special term, Saratoga county.

Action of trespass guare clausum by Mary E. Freeman against Lemon Thomson. Defendant’s motion for change of venue was denied, and defendant appeals. Code Civil Proc. FT. Y. § 982, enumerates the actions which shall be tried in the county in which the subject of the action is situated, and, among them, waste and nuisance. It also provides, every other action shall be tried in such county which shall be for a judgment establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, or interest in real property.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

Isaac Lawson, for appellant. A. D. Wait, for respondent.

The question in this case is whether actions of trespass guare clausum are local in respect to the place of trial. This question has been decided in the affirmative in Easton v. Booth, 19 Wkly. Dig. 552 , by the Second department of this court. That decision should control us, until it be reversed. The question arises under section 982 of the Code. This is stated by the reviser, in his note, to be substituted for Code Proc. § 123, excepting subdivision 4, transferred to section 983. In section 123, Code Proc., the words “for injuries to real property” are found. Ho indication is given that any change was intended as to these actions. Besides, “waste” and “nuisance” are included in section 982, Code Civil Proc. And further, it is well known that the action of trespass guare clausum is often used for the very purpose of tryingi title. See Dunster v. Kelly, 18 N. E. Rep. 361 . While, then, the language of the section is not as clear as it might have been, we think that the sound construction is that given by the general term of the Second department. A contrary decision Has been made by the city court of Brooklyn, in Polley v Wilkisson, 5 Civil Proc. 135, as to the jurisdiction of that court; but the language of subdivision 3, § 263, Code Civil Proc., gives jurisdiction specially in such actions by residence of defendant, on service, in the city. Order affirmed, with $10 costs and printing disbursements.

Landon and Ingalls, JJ., concur.