Lamson Consolidated Store Service Co. v. Hart — 23 N.Y. St. Rep. 594

Majority

p. 594

Lamson Consolidated Store Service Company, Resp’t v. John W. Hart, Sheriff, etc., Impleaded, with Others, App’lt.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

Trial—Place of—Action against a sheriff.

Where a cause of action against a sheriff arose out of an act done in performance of his official duty, he will not, although others be sued with him, be deprived of his right to a trial in the county whose officer he is, and upon making a written demand, is entitled to an order directing the removal of the cause.

Appeal from an order denying a motion to change the place of trial from the county of New York to the county of Albany.

Chase & Delehanty, for app’lt; Horace H. Chittenden, for resp’t.

The plaintiff, as the owner of office furniture, machinery, tools, wares and merchandise, brought this action to restrain their sale and disposition under an •execution issued to the defendant Hart, as sheriff of the county of Albany.

It is alleged in the complaint that the sheriff, on or about

p. 595

the 2d of November, 1888, levied upon this property at the office and shops in the city of Albany of the defendant, the United States Store Service Company. A demand was made, within the time prescribed by the statute, for the change of the place of trial to the county of Albany.^ The plaintiff failed to consent to that change, and within the time mentioned in section 986 of the Code of Civil Procedure an order was made requiring the plaintiff to show cause why the place of trial should not be changed to the county of Albany. This motion was afterwards heard and denied by the court, and from the order denying it the sheriff has brought this appeal.

It is perfectly evident from the complaint and the other papers in the action, that it has been brought against the sheriff as the principal defendant for the act done by him in virtue of his office as that has been described in subdivision 2, section 983 of the Code of Civil Procedure. And that section has declared that an action of this description must be tried in the county where the cause of action or some part of it arose.

This right has been no further qualified than that the sheriff shall comply with succeeding sections of the Code, providing for the service of the demand and the making of the motion. These sections were literally complied with on his part, and that entitled him to a change of the place of trial. And he was not deprived of that right by the fact that the United States Store Service-Company and its receiver were joined as defendants with him in the action. He was the essential and necessary party.

The cause of action, if any existed in equity or at law, arose out of his act in the execution of the process delivered to and used by him. And that the sheriff, though others may be sued with him as defendants, will not on that account be deprived of the right to a trial in the county whose officer he is, was held in People v. Kingsley ( 8 Hun, 233 ); Wintjen v. Verges (10 id., 576). The order should be reversed, with ten dollars costs, and the disbursements, and an order entered changing the place of trial to' the county of Albany, and for costs of the motion.

Van Brunt, Ch. J., and Brady, J., concur.