Lyman v. Grammercy Club

It is alleged in the complaint, in substance, that the defendant the Grammercy Club' applied to the special deputy excise commissioner, at the city of New York, for a liquor tax certificate, and paid the tax of $800; that it furnished the bond in the penal sum of $1,600, required by section 18 of the liquor tax law (Laws 1896, p. 61), executed by the club, as principal, and by the Fidelity & Deposit Company of Maryland, as surety, and obtained the cer

The plaintiff resides in the county of Oswego, and his attorney in the county of Ontario. The defendant corporations have their principal office and place of business in the city of New York; and all their witnesses, 20 in number, reside there. Upon motion of the defendant the Fidelity & Deposit Company of Maryland an order was granted by the special term changing the place of trial from the county of Ontario—the county designated in the summons and complaint—to the county of New York, for the convenience of witnesses. All the alleged transactions set forth as a cause of action arose in the city and county of New York, where the defendants and their witnesses reside, and it seems to us that there is no just reason for laying the venue in the county of Ontario, 300 miles distant from the city of New York, and thus put the defendants to the expense of taking their witnesses to the county of Ontario, and the witnesses to the trouble of traveling that distance. The plaintiff does not question the justice and propriety of the order, but contends that the power of the supreme court to change the place of trial in actions on bonds given pursuant to section 18 of the liquor tax law is taken away by the provisions of that law. If it can be successfully maintained that the court is devested of its power to change the place of trial, “although the convenience of witnesses and the ends of justice will be promoted by the change” (Code Civ. Proc. § 987, subd. 3), it must follow that the court is also shorn of the power to change the venue, although “there is reason to believe that an impartial trial cannot be had in the proper county” (Id. § 987, subd. 2). The power in question is inherent in the very constitution of a court, and its exercise is essential to the due and proper administration of its judicial functions, and is of vital importance to an efficient and abiding control over judicial proceedings. As long ago as 1807 it was declared that “we have an equitable power over venues, and we ought so to exercise it as to promote the convenience of suitors, and to save expense to the parties.” Manning v. Downing, 2 Johns. 453 . There is a presumption against an intention on the part of the legislature to infringe upon the province of the judicial department of the government, and to devest the court of any of its essential powers, or to forbid the exercise of such powers in particular cases; and any construction leading to such a result must be avoided, if possible. Such an intention must be -expressed in clear and unequivocal terms. There must be express negative- words, or the implication must be necessary and irresistible. It is supposed that the legislature would not make so important an innovation without a very explicit expression of its intention. End. Interp. St. §§ 151, 153, 522. Section 18 of the liquor tax law provides that the state commissioner of excise may “commence and maintain an action in any court of record, in any county of the state, for the recovery of the penalty for the breach of any condition of any bond, or any penalty or

However, there are inherent and fatal defects in the papers on which the motion was made, which do not fall within the class of what is known as “preliminary objections.” The defendants answered separately by different attorneys. The defenses of both defendants are. substantially the same, consisting in a denial of the violation of the condition of the bond. The Fidelity & Deposit Company of Maryland moved to change the place of trial from the county of Ontario to the county of New York, or to the county of Kings, for the convenience of witnesses. The Grammercy Club did not join in the motion. In the order granting the motion it is recited that on the motion of the attorneys for the Fidelity & Deposit Company of Maryland the place of trial is changed. No reason is given why both defendants did not join in the motion, nor does it appear that notice of the motion was served on the attorneys for the Grammercy Club. The rule is that a motion to change the place of a trial of an action for the convenience* of witnesses must be made by all the defendants who defend, unless some reason is shown why all did not join. Sailly v. Hutton, 6 Wend. 508 ; Legg v. Dorsheim, 19 Wend. 700 ; Brittan v. Peabody, 4 Hill, 62 , note; Welling v. Sweet, 1 How. Prac. 156.

In the affidavits stating the- names of the witnesses who will be convenienced by a change of the place of trial, it is simply stated that the defendant expects to prove certain facts by the witnesses named, but it is nowhere stated that those facts can be proved by those witnesses, nor do the affidavits disclose grounds showing that the facts can probably be established by the persons designated; and it is in

It is stated in the complaint that the bond on which the action is brought is annexed to, and forms a part of, the complaint; and in the answer of the Fidelity & Deposit Company of Maryland the bond on which the action is brought is referred to as being annexed to the complaint; but the bond is not printed in the record, which is. defective. "Whether the bond contains any provision in respect to the venue or place of trial of an action to be brought thereon does not appear.

As the question of the character of this action was raised and argued upon this motion, we deem it proper to say in conclusion that this is not “an action to recover a penalty or forfeiture imposed by statute.” Code Civ. Proc. § 983. The action is upon a contract obligation, to recover the penalty imposed or assumed by the instrument, and not to recover a penalty imposed by statute, within the intent and meaning of the provision quoted. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, without prejudice to the right of the defendants to make a new motion.

Order reversed with $10 costs and disbursements, and the motion denied, with $10 costs, without prejudice to the right of defendants to make a new motion. All concur, except WARD, J., who dissents with mem.

The record discloses that the only question raised and considered at the special term was whether the court had power to change the place of trial in this action from the county of Ontario to the county of New York, the claim of the plaintiff there and appellant here being that the supreme court had no power to make the change as the Raines Law had provided that the state commissioner of excise could commence an action in any court of record in any county of the state for the recovery of the penalty for the breach of the condition of any bond given under the provisions of this law; and that is the only question presented to us upon this appeal. The objection was not taken, either in the court below or here, that the defendant the Grammercy Club had not joined in the motion to change the place of trial, or that the affidavits upon which the motion was granted were defective in any respect as to the materiality or residence of witnesses, or any other irregularity claimed. I concur in

I think the order should be affirmed, with costs.