Cornell v. Evans — 14 N.Y. Sup. Ct. 299

Majority

p. 299

SAMUEL W. CORNELL, Respondent, v. CHARLES E. EVANS, Appellant.

Headnote

Place of trial- — change of— Gode, § 125, § 33, sub. 2,

Section 125 of the Code, requiring actions to be tried in the county where the parties reside, applies to actions brought in the Common Pleas and Superior Court and removed, under section 33, subdivision 2 of the Code, into the Supreme Court, although this last section confers a discretionary power.

Appeal from an order of the Special Term denying a motion to remove-an action from the Court of Common Pleas to the Supreme Court, and to change t-he venue to Kings county.

Both parties resided in Kings county, and the defendant had a place of business in the city of New York.

Before answering the defendant demanded that the place of trial be changed to Kings county.

B. E. Valentine, for the appellant.

O. M\ Marsh, for the respondent.

Although the Code (§ 33, sub. 2), in reference to the change of the place of trial in actions removed into this court from the Common Pleas and Superior Court, confers a discretionary power, and this court may therefore remove and may change the place of trial, nevertheless we think that when the cause is removed the provisions of section 125 of the Code apply and require the action to be tried in the county in which the parties reside.

The order should therefore be reversed, but, we think, with ten dollars costs of this appeal, and disbursements to abide event.

Davis, P. J., and Daniels, J., concurred.

Order reversed, ten dollars costs of appeal and disbursements to abide event.