Kearr v. Bartlett — 13 N.Y. St. Rep. 580

Majority

p. 580

David Kearr, App’lt, v. Homer L. Bartlett, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 23, 1888.)

Headnote

1. Venue—Place of trial determined by the complaint—Code Civil Pro., § 982.

It must be determined by the complaint whether the action is within Code Civil Procedure, § 982, which requires an action to procure a judgment directing a conveyance of real property to be tried in the county in which the subject of the action or some part of it is situated.

2. Same—Exchange of real estate—Place of trial.

In an action to secure a specific performance of an agreement for the exchange of lands situated in the counties of New York and Kings (the defendant’s lands which the plaintiff sought to recover being situated in Kings county). Held, that under Code Civil Procedure, § 982, the action must be tried in Kings county. That it was wholly immaterial, whether in exchange for the lands thus sought to be secured, lands in New York county were to form a part of such exchange. The exchange affects the consideration to be paid and is a question of consideration only.

Appeal from order changing place of trial.

Marston Niles, for app’lt; W. J. Oaynor, for resp’t.

The plaintiff commenced this action to secure a specific performance of an agreement for the exchange of lands situated in the counties of New York and Kings. The defendant’s lands which the plaintiff "seeks to recover by this action are situated in Kings county. The defendant moved to change the place of trial from this county to Kings county and the motion was granted.

Section 982 of the Code provides that an action to procure a judgment directing a conveyance of real property must be tried in the county in which the subject of the action or some part of it is situated.

It has been decided and properly so that it must be determined by the complaint whether the action is within the section mentioned. Knickerbocker v. Clark, 22 Hun, 506 .

The learned counsel for the appellant seems to think that as the agreement in reference to the transfer of the property involves an exchange of lands situate in two counties the venue may be laid in either. This is an erroneous view, for the reason that the exchange affects the consider

p. 581

ation to be paid and is really a question of consideration only. What the plaintiff seeks is that the defendant be directed to convey to him lands situated in the county of Kings and that brings it clearly within the section referred to.

It is wholly immaterial whether in exchange for the lands thus sought to be secured, land in the city of New York is to form a part of such exchange.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.