Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

Henry B. Heylman, for appellant.

H. J. Morris and Percival S. Monken, for respondents.

WOODWARD, J. The appellant in this case urges that the judgment is not supported by a decision of the court, as prescribed by section 1022 of the Code of Civil Procedure. The action was tried by the court without a jury, and on the 17th day of July, 1899, the court filed a memorandum opinion in which it said, "Final judgment may be granted as against the plaintiff, with costs." The decision of the court, which embraced findings of fact and conclusions of law, was rendered on the 9th day of September, and upon that date an interlocutory judgment was entered, decreeing a partition of the premises in dispute, and adjudging the defendant Mary A. Denike to be the owner of two thirds of the property. The final judgment, which is involved in this appeal, was entered on the 11th day of August, 1899, prior to the decision and interlocutory judgment. The interlocutory judgment provided that the question of costs (which, by the provisions of section 1022 of the Code of Civil Procedure, must be awarded by the decision of the court or report of the referee) should be fixed by the final judgment, and this had already been entered when the decision was made. There can be no doubt, therefore, that the judgment now before us, being without findings or a decision to support it, should be reversed. Hall v. Beston, 13 App. Div. 116; 77 St. Rep. 304; 43 Supp. 304; Shaffer v. Martin, 20 App. Div. 304; 80 St. Rep. 992; 46 Supp. 992, and authorities cited. It appears necessary, under the circumstances, which are substantially the same as those presented in Reynolds v. Aetna Life Insurance Co. 6 App. Div. 254; 39 Supp. 885, that there should be a new trial. If practicable, we should remit the case to the trial court, in order that proper findings or a formal decision might there be

N. Y. A. C.

17

made, as was done in the two cases first above cited; but this course cannot be pursued, inasmuch as the judge who tried the case is now a justice of the appellate division in the third de partment.

Judgment reversed, and new trial granted; costs to abide the final award of costs. All concur.

REMINGTON & SHERMAN CO. v. NIAGARA COUNTY NAT. BANK.

[54 App. Div. 358; 100 St. Rep. 560; 66 Supp. 560.

(Supreme Court, Appellate Division, First Department. November 9, 1900.)

ACTION BY FOREIGN CORPORATION-PLACE OF TRIAL.

Where a defendant is sued by a foreign corporation in a county other than that of its residence, it may change the place of trial to the county of his residence, under Code Civ. Pro. § 984, providing that an action must be tried in the county in which one of the parties resided at the commencement thereof, though such corporation held a certifi cate issued under Laws 1892, c. 687, §§ 15, 16, authorizing it to do business in New York; since it was a foreign corporation before the certifi cate was issued, and remained so afterwards without domicil or residence in New York.

NOTE. PLACE OF TRIAL OF ACTION BY OR AGAINST CORPORATION.

An action, not specified in the last two sections, (actions affecting real property, for penalties, against public officers and for chattels distrained), must be tried in the county, in which one of the parties resided, at the commencement thereof. If neither of the parties then resided in the state, it may be tried in any county, which the plaintiff designates, for that purpose, in the title of the complaint.

984 Code of Civil Procedure.

1900]

Remington & Sherman Co. v. Niagara County Nat. Bank.

Appeal from special term, New York county.

Action by the Remington & Sherman Company against the Niagara County National Bank. From an order denying a motion to change place of trial from New York county to Niagara county, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, RUMSEY, MCLAUGHLIN, and INGRAHAM, JJ.

Lyman A. Spalding, for appellant.

William E. Warland, for respondent.

PLACE OF TRIAL OF ACTION BY OR AGAINST CORPORATION,-continued.

1. Domestic corporation.

The place of trial of an action brought by a resident of this state against a domestic corporation is either in the county where plaintiff resides or where the corporation has its principal place of business.

Loretz v. Metropolitan Street Ry. Co. 34 App., Div. 1; 87 St. Rep. 1059; 53 Supp. 1059.

Where an action is brought in a county in which neither of the parties resides, a domestic corporation has the right to demand a change to the county in which its principal office is located.

Ganz v. Edison Electric Illuminating Co., 79 Hun, 409; 61 St. Rep. 344; 29 Supp. 810.

A domestic corporation cannot bring an action in the county in which it has an office for the transaction of its financial business, when its certificate of incorporation was filed in another county and stated that its principal business was to be carried on therein, and its land, furnaces and mines were situate and a large part of its business for many years had been carried on exclusively in said county, which was also the residence of the defendant.

Rossie Iron Works v. Westbrook, 59 Hun, 345; 36 St. Rep. 555; 13 Supp. 141.

In an action brought by non-residents against a domestic corporation, the proper place of trial is the county where the corporation has its office and carries on its general business.

Conroe v. National Protection Insurance Co. 10 How. Pr. 403.

MCLAUGHLIN, J. Action to recover a balance alleged to be due for the construction of a safe-deposit vault in defendant's building in the city of Lockport, N. Y. The action was commenced by the service of a summons and complaint, in which the place of trial was designated as the city and county of New York. The defendant's attorney, prior to the service of an answer, served a written demand on the plaintiff's attorney that the place of trial be changed to Niagara county upon the ground that that was the proper county. The demand not having been complied with, the defendant, within the time prescribed by statute (Code Civ. Pro. § 986), made a motion that the change be made in accordance with the demand. The motion was denied, and the defendant has appealed.

We think the motion should have been granted. The mov

PLACE OF TRIAL OF ACTION BY OR AGAINST CORPORATION,-continued.

For the purpose of determining the proper place for the venue in an action brought by non-residents against a domestic corporation, its place of residence is in the county where its general business is transacted and located, and an action cannot be brought against it in another county although it has there an office where some of its business is done.

Hubbard v. National Protection Insurance Co. 11 How. Pr. 149.

A domestic corporation when sued by a non-resident has the right to have the place of trial in the county which it had designated by its certificate of incorporation as that in which its principal office of business was to be located.

Duche v. Buffalo Grape Sugar Co., 63 How. Pr. 516.

An action by a non-resident against a domestic corporation should be tried in the county in which the corporation has its principal office and place of business.

Speare v. Troy Laundry Machinery Co., 44 App. Div. 390; 94 St. Rep. 1080; 60 Supp. 1080.

An action brought to recover damages for injuries sustained by plaintiff in a collision on defendants's railroad may be tried in the county in which is located an office and one terminus of the road, although its principal place of business is at the other terminus.

Pond v. Hudson River R. R. Co., 17 How. Pr. 543.

A domestic corporation may have the place of trial changed to the county in which its principal place of business is located, where the summons

1900]

Remington & Sherman Co. v. Niagara County Nat. Bank.

ing papers show that the plaintiff is a foreign corporation, or ganized under the laws of the state of Pennsylvania, and that the defendant is a domestic corporation, organized under the laws of the United States, having its principal place of business in the county of Niagara. This being the situation of the parties, the defendant is entitled, as a matter of right (under section 984 of the Code of Civil Procedure), to have the place of trial changed. This section provides that an action "must be brought in the county in which one of the parties resided at the commencement thereof." The defendant, as already said, is a domestic corporation. Its principal place of business is in the

PLACE OF TRIAL OF ACTION BY OR AGAINST CORPORATION,-continued.

and complaint designate as the place of trial a county in which neither party resides, although, after the demand for change of venue, the complaint is amended by designating the county in which plaintiff resides. Rector v. Ridgewood Ice Co. 38 Hun, 293, aff'd 101 N. Y. 656.

An action against a national bank need not be brought in the county where the bank is located but may be brought in the county where plaintiff resides.

Talmage v. Third National Bank of N. Y. 91 N. Y. 531, aff'g. 27 Hun, 61.

2. Foreign corporation.

A resident of this state is entitled to have an action brought against him by a foreign corporation tried in the county in which he resides.

New Haven Clock Co. v. Hubbard, 40 St. Rep. 654; 16 Supp. 125.

The proper place of trial of an action brought by a foreign corporation, having its place of business in a foreign country is in the county where the defendant resides.

Molson's Bank v. Marshall, 32 Misc. 602; 101 St. Rep. 220; 67 Supp. 220. An action by a foreign corporation, having a principal place of business in a county in this state, against a resident should be tried in the county where the latter resides.

Grover & Baker Sewing Machine Co. v. Kimball, 64 Barb. 425.

A foreign corporation, having an agency and business office in one of the counties of this state, cannot bring an action in such county against a resilent of another county, but the latter county is the proper place of trial. International Life Assurance Co., v. Sweetland, 14 Abb. Pr. 240.

A foreign corporation cannot be a legal resident, although it has been legally authorized to do business in this state, and the residence of the de