Becker v. Town of Cherry Creek

The action was brought to recover the amount due upon 131 town bonds of the defendant, alleged to have been duly issued pursuant to the statute in aid of the Buffalo & Jamestown Railroad Company in the year 1874.

The defendant, by its answer, puts in issue the allegations of the complaint in support of the validity of the bonds and of the right of the plaintiff to recover upon them.

The motion to change the place of trial from Erie to Chautauqua county was founded upon the contention on the part of the defendant that it was a local action, within the provisions of §982 of the Code of Civil Procedure, which provides that certain actions must be tried in the county in which the subject of the action or some part thereof is situated, and after mentioning some actions it includes “ every other action to recover or procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property or a chattel real.” It is urged that this action comes within that provision of the section because by the statutory adjudication, if effectual, and duly executed by the issue of town bonds, they became a charge upon the real property in the town. If they are such they became so when they were issued. The purpose of the action is to enforce the liability to pay which it is alleged the town assumed by the issue of the bonds pursuant to such adjudication. They, with a view to that purpose, are the subject of the action. It is an action at law to recover a sum of money upon a contract which the plaintiff alleges was duly entered into and by which the town undertook to pay the amount mentioned in the instrument known as its bond. It is true that the trial may involve the consideration and determination of the question of the validity of the statutory adjudication pursuant to which the bonds were issued, and that if a recovery be had, the amount of it for the purposes of collection will be chargeable upon the property, real and personal, in the town, subject to taxation.

But the subject of the action is not the establishment of a lien upon real property, although the effect of a recovery by the

The object of the statutory adjudication was consummated when the bonds were issued for the purpose in view; and in the present action it, and the proceedings upon which it was founded, are facts bearing upon the ■ question of authority to issue them, which authority sought to be conferred or created for ■ that purpose was effectual, or not so, to give validity to the bonds, which are the subject of the action in the sense applicable to that term. Knickerbocker Life Ins. Co. v. Clark, 22 Hun, 506 ; Hogg v. Mack, 53 id., 463 ; 25 St. Rep., 374 .

The only question to be tried and determined upon the issues made by the pleadings is whether or not the bonds were pursuant to the statute duly issued as such and are valid obligations of the defendant; and the fact that the authority to issue them was dependent upon the preliminary proceedings, including the statutory adjudication, may within the issues be contested is not important for the purposes of the question presented upon the motion.

The order should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., concurs; Lewis and Haight, JJ., not sitting.