Freeman v. Thompson — 20 N.Y. St. Rep. 194

Majority

p. 194

Mary E. Freeman, Resp’t, v. Lemon Thompson, App’lt.

(Supreme Court, General Term, Third Department,

Filed November 20, 1888.)

Headnote

Venue—Actions of trespass quare clausum eregit are local actions —Code Civil Pro., § 982.

Actions of trespass guare clausum fregii are local, and must be tried in the county in ■which the subject of the action or some part thereof is situated.

Appeal from an order denying a motion to change the place of trial herein.

The action was brought to recover, upon an assigned claim, for trespass in entering upon lands of plaintiff’s1 assignor and cutting, carrying away and converting trees and timber growing thereon. The land was situated in Warren county. The plaintiff resided in Rensselaer and the defendant in Albany county at the time the action was commenced. And a demand that the place of trial be changed to the proper county was duly served and was not complied with. The defendant thereupon moved upon the foregoing facts to change the place of trial from Warren county to the proper county, to wit, Albany county, and the court denied the motion.

Isaac Lawson, for app’lt; A. D. Wait, for resp’t.

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 Week. 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 Procedure, section 123, excepting subdivision 4 transferred to section 983. In section 123 of the Code Procedure the words, “for injuries to real property,” are found. No indication is given that any charge was intended as to these actions. _

_ Besides “waste and nuisance” are included in section 982, Code Civil Procedure.

And further it is well known that the action of trespass guare clausum is often used for the very purpose of trying title. See Deweston v. Kelly Albany L. J. Dec., ’88, No. 66, 22.

While then the language of the section is not as clear as it might have been, we think that the sound construction

p. 195

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 Browne Civil Pro., 135), as to the jurisdiction of that court. But the language of subdivision 3, section 263, Code Civil Procedure, gives jurisdiction specially in such actions by residence of defendant on service in the city.

Order affirmed, with ten dollars costs and printing disbursements.

Landón and Ingalls, JJ., concur.