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pay the alimony provided for in the decree of separation. But, even if he should refuse to continue the payments, the wife is under no obligation to her attorney to take any steps to enforce its payment, and the attorney himself could not undertake to enforce the payment of the alimony, either by proceeding against the fund on deposit or otherwise, merely for the sake of recovering the amount due to him by the wife. Branth v. Branth (Sup.) 19 Civ. Pro. 28; 32 St. Rep. 979; 10 Supp. 638. Indeed, so far as concerns his claim for services in enforcing the payment of alimony, the law does not permit an attorney's lien to attach to the alimony paid to the wife under a decree. It is intended for the support of the party to whom it is awarded, its amount is fixed, with reference to her necessities, and the courts will not countenance its appropriation to any other purpose. Branth v. v. Branth, supra. If then the attorney could have no lien upon the alimony itself, it is difficult to see how he can successfully assert a lien against money belonging, not to his client, but to her husband, which has been impounded only for the purpose of securing the payment of the alimony. As to the fund deposited to secure the wife's possible right to dower, it is equally difficult to see how the attorney's lien can attach to it. The inchoate rit which the wife has in that fund is not property which she can assign or transfer or incumber. The most she can do with it is to release her possible future interest in it, and that release can run only to the person having title to the property. Since an attorney can assert a lien to a fund only by reason of his claim against his own client, and his claim upon the fund can be no greater than that which his own client has, it cannot be said in the present case that the wife's attorney has a lien upon the husband's money impounded to secure the wife's possible future right of dower, which, even if it ever accrued, would entitle her, not to the principal fund, but merely to the income derived from it. It may be, as suggested by the wife's attorney, that he is entitled to recover from the husband the value of the services rendered to the wife in the effort to compel the husband to pay the alimony awarded by the decree of separation. Naumer v.

[Jan.

Appellate Division.

Gray, 28 App. Div. 529; 85 St. Rep. 222; 51 Supp. 222. If this be so, however, it is a right which must be enforced by action. The court has no power to enforce such an obligation by summary process, and, even if the attorney has a right of action, that does not imply a lien upon these particular funds which would justify their further retention in the hands of the chamberlain. The motion must be granted, but without costs. Motion granted, without costs.

LENT v. RYDER.

[47 App. Div. 415; 96 St. Rep. 400; 62 Supp. 400.]

(Supreme Court, Appellate Division, Second Department. January 30, 1900.)

CHANGE OF VENUE-COUNTY JUDGE-DRAWING JURORS-INFLUENCE. Though Laws 1892, c. 491, §§ 13, 14, amended by Laws 1893, c. 269, make it the duty of a county judge to attend at the drawing of jurors, and he may be appointed to do the drawing, it will not be presumed that a fair trial cannot be had in a cause in which the plaintiff was the county judge, and was present at the drawing of jurors as required, there being no charge of irregularity in such drawing; and a change of venue will not be granted on that ground alone.

NOTE. CHANGE OF VENUE FOR OFFICIAL POSITION OF PARTY OR ATTORNEY.

Exhaustive search has failed to disclose any cases decided by New York courts other than those herein indicated.

An exhaustive review of the cases in other states has not been attempted. The fact that the defendant in an action is the sheriff of the county to which it is sought to change the venue is not a sufficient objection to defeat such change.

Baker v. Sleight, 2 Caines, 46.

The court said in the case just above cited, "The influence of a sheriff's office can never prevent an impartial trial."

In Van Rensselaer v. Douglas, 2 Wend. 290, the entire report of the case, except the reporter's head-note, is as follows: "The venue in this cause was changed from Saratoga to Rensselaer, on an affidavit that the circuit judge of the district in which Saratoga is situated was, previous to his appointment, counsel for the plaintiff." The head-note contains nothing different.

1900]

L'ent v. Ryder.

Appeal from special term, Westchester county. Action by Smith Lent against Edgar L. Ryder. From an order denying a change of venue, defendant appeals. Affirmed. Argued before GOODRICH, P. J., and BARTLETT, HATCH, WOODWARD, and HIRSCHBERG, JJ.

Griffin and Young (J. Rider Cady, counsel) for appellant.

Smith Lent, in person, for respondent.

WILLARD BARTLETT, J. We ought not to reverse this order unless we are satisfied that there is reason to believe that an inpartial trial cannot be had in the proper county, namely the county of Westchester, as the motion is based solely on subdivision 2 of section 987 of the Code of Civil Procedure. The plaintiff is the county judge of Westchester county. As such it is his duty from time to time to attend at the office of the commissioner of jurors to witness and assist in the drawing of a jury for the supreme court. He may also be appointed by the officers who supervise the drawing to draw the ballots from the

CHANGE OF VENUE FOR OFFICIAL POSITION OF PARTY OR ATTORNEY,— continued.

The statutes of some states provide for a change of venue on the ground of the undue influence of a party or his atttorney in the county where it is laid.

Thus in Iowa the venue was changed on the ground that the plaintiff's attorney had received an unprecedented vote when a candidate for a political office.

Deere v. Bagley, 80 Iowa, 197.

But the mere fact, that the adverse party had been mayor of a city in the county where the suit is brought for three terms and has great influence over the inhabitants of such county, is not sufficient ground for a change of venue, when unsupported by other proofs of undue influence.

Greeno v. Wilson, 27 Fla. 492.

Undue influence of counsel or party is ground for change of venue in Arkansas, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri and Wyoming.

In Indiana, Iowa, Minnesota, Pennsylvania, and Wyoming, the venue can be changed if the county where it is laid is a party to the action.

[Jan.

Appellate Division.

box. Chapter 491, Laws 1892, §§ 13, 14, as amended by chapter 269, Laws 1893. It was expected that this case would be tried at the December term, 1899, and the moving affidavit alleges on information and belief that the plaintiff, as said county judge, did participate in and direct the drawing of the petit jurors for that term. His answering affidavit, however, although not as explicit on this point as is desirable, indicates that it is the invariable custom in Westchester county for the commissioner of jurors to do the actual drawing, and that the county judge, though he might be designated to perform that duty under section 14 of the statute, really acts only as a witness of the proceedings, as does the county judge in every county where the general provisions of the Code prevail in regard to the selection of trial jurors. Code Civ. Pro. § 1044. The method of drawing jurors under the special statute relating to Westchester county is described by Judge Lent in his affidavit as follows:

"The names of the jurors for the whole county are entered in a book in alphabetical order, and to each name is given a number. The initial of the surname of each juror, together with his number, is written upon a card. The whole number of cards (there being, of course, as many cards as there are jurors,—about 3,500, I believe) is put into a box, and drawn out by the commissioner of jurors. The commissioner does not even know the number he has drawn until it is taken out of the box, and does not know the name of the juror whose number is drawn until the name is read from the book. It is impossible, therefore, that the plaintiff could, if he would, suggest the name or names of any one to be drawn, and have such suggestion acted upon."

We think there can be no presumption of law that an impartial trial cannot be had in the county where one of the parties is the county judge, simply because he acts as an official overseer, in the manner stated, at the drawing of the petit jurors who are summoned to serve at the term of court at which the case is expected to be tried. Except in counties where the population exceeds 120,000, the constitution permits county judges to practice law in the supreme court, while the Code, as already pointed out,

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requires them to attend and witness the drawing of trial jurors to serve therein. Neither the constitutional convention of 1894 nor the legislature can have deemed it objectionable or unfair to other lawyers to allow the county judge to try cases before jurors whose names had been drawn from the box under his supervision. The objection seems no greater where the county judge appears before the jury, not as a lawyer, but as a litigant.

A different question would be presented if it appeared that in the functions exercised by the county judge at the time of the jury drawing there were any opportunity for misconduct on his part affecting the selection of the names, or any proof that he had attempted any wrongdoing in the matter. But there is not a suggestion of this kind in the case. On the contrary, the learned counsel for the appellant in his oral argument expressly disclaimed any such idea. We have here, therefore, the simple question whether the extent to which Judge Lent participates in the drawing of jurors in Westchester county gives us reason to believe that an impartial trial cannot be had in that county in a libel suit in which he is the plaintiff. It seems clear on this record that we must answer that question in the negative. If we were to adopt the broad rule which the appellant seems to think proper, a county judge could not prosecute in his own behalf a suit on a promissory note in the supreme court in his own county, but would have to submit to a change of venue upon the demand of the defendant.

It is argued in support of the appeal that the plaintiff will have an unfair advantage over the defendant in Westchester because the jurors there have learned to look upon the county judge as an exponent of the law, and also that, "by reason of the power of the county judge to excuse jurors from service in his court, all jurors would dislike to offend the plaintiff, and that, if any one of the jurors thought it likely that he might be a party in litigation before the plaintiff in his court, the plaintiff would have an unfair advantage over the defendant." Neither of these positions is tenable. We have never observed any reluctance on the part of juries at rural circuits to render a verdict

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