p. 340MARY E. FREEMAN, Respondent, v. LEMON THOMSON, Appellant.Headnote
Trespass quaere clausum is a local action.Actions of trespass qumre clausum are local in respect to tlie place of trial.
Appeal from an order made June 5,1888, at the Saratoga Special Term, denying defendant’s motion to change the place of trial from the county of Warren to the county of Albany.
Isaac La/wson, for the appellant.
A. B. Wait, for the respondent
The question in this case is whether actions of trespass quiere clausum are local in respect to the place of trial.
This question has been decided in the affirmative in Easton v. Booth (19 Weekly Dig., 552), by the second department of this
p. 341court. 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 the Code of Procedure (§ 123, excepting subdivision 4, transferred to section 983). In section 123 of the Code of Procedure, the words “"for injuries to real property” are found. No indication is given that any change was intended as to these actions. Besides, “ waste ” and
“ nuisance” are included in section 982, Code of Civil Procedure. And. further, it is well known that the action of trespass
quaere clausum is often used for the very purpose of trying title.
(Dunster v. Kelly, 38 Alb. Law Jour. [Dec., 1888, No. 22], p. 438.)
"While, then, the language of the section is not as clear as it might have been, we think that the sound construction 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, Civ. Pro. R., 135), as to the jurisdiction of that court ;■ but the language of subdivision 3, section 263, Code of Civil Procedure, gives jurisdiction specially in such actions by residence of defendant or service in the city.
Order affirmed, with ten dollars costs and printing disbursements.
Landon and Ingalls, JJ., concurred.