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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 plaintifi 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. 343.

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 do mestic 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 resident 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 lesally authorized to do business in this state, and the residence of the de

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county of Niagara and there it has its residence. Code Civ. Pro. $ 3343, subd. 18; Speare v. Troy Laundry Machinery Co. 44 App. Div. 390; 94 St. Rep. 1080; 60 Supp. 1080; Rossie Iron Works v. Westbrook, 59 Hun, 315; 36 St. Rep. 555 ; 13 Supp. 141; Rector v. Ridgewood Ice Co. 38 Hun, 293. The plaintiff is a foreign corporation. It is not a resident of the state of New York. On the contrary, it is a resident of the state of Pennsylvania. It came into existence under the statutes of that state, and in that state alone it has its domicile and residence. Plimpton v. Bigelow, 93 N. Y. 592; Stevens v. Phænix Insurance Co. 41 N. Y. 149. The fact that the state of New York has issued to it the certificate provided by statute (Laws 1892, c. 687, $$ 15, 16) authorizing it to do business

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

fendant is the proper county for the trial of an action for malicious prosecution brought by it against a resident of this state.

Shepard & Morse Lumber Co. v. Burleigh, 27 App. Div. 99; 84 St. Rep. 135; 50 Supp. 135.

b. Municipal corporation. The laws of 1898, chapter 182, being the charter of cities of the second class, provides as follows: “The place of trial of all actions or proceedings against the city, or any of its officers, boards or departments, shall be the county in which the city is situated.”

Part of § 461 as am'd by laws 1899, chap. 581.

An action against a city of the second class to recover possession of real property not situated in the county in which the city is located can be brought in the county in which the real property is situated, since the char. ter was only intended to apply to transitory actions.

Czarnowsky v. City of Rochester, 55 App. Div. 388; 100 St. Rep. 66 Supp. 931, aff’d 165 N. Y. 649 ; N. E.

The Greater New York Charter, laws of 1897, chapter 378, § 262 provides as follows: “The supreme court shall have exclusive jurisdiction over all actions or special proceedings wherein The City of New York is made : party defendant, and all such actions shall be tried in that county wholly or partly embraced within The City of New York in which the cause of action arose, or in the county of New York, subject to the power of the court, to change the place of trial in the cases provided by law.”

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1900]

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

in the state of New York does not in any way affect its residence. It was a foreign corporation before the certificate was issued, and it remained so thereafter. It follows, therefore, that, inasmuch as the only county within which one of the parties resided at the commencement of the action was the county of Niagara, the action must there be tried. That being the proper county, the court had no discretion in the matter, and the defendant's motion to change the place of trial should have been granted.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs to abide event. All concur.

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

Actions against the city of New York must be brought in New York county.

City of Brooklyn v. New York, 25 Hun, 612.

The case last cited was decided under section 8 of chapter 853 of the laws of 1868 which contains practically the same provision as the present charter.

The place of trial of an action for negligence against the corporation of the city of New York is in the county of New York under section 1103 of chapter 410 of the laws of 1882 (the New York city consolidation act) which contains practically the same provision as the present charter.

Getman v. New York, 66 Hun, 236; 49 St. Rep. 158; 21 Supp. 116.

An action to enforce a lien upon funds in the treasury of the City of New York, to which the City of New York was made a party defendant, need not be brought in the county of New York.

Mussen v. Ausable Granite Works, 63 Hun, 367; 43 St. Rep.,609; 18 Supp. 267.

In the case last cited it was held, on the ground that it deprived the court of the power to change the place of trial, that section 1103 of chapter 410 of the laws of 1882, which does not contain the provision of the present charter making the place of trial subject to change by the court, was unconstitutional.

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SHEPARD & MORSE LUMBER CO. v. HURD et al.

[55 App. Div. 627; 100 St. Rep. 766; 66 Supp. 766.]

Supreme Court, Appellate Division, Third Department. November 14,

1900.

PLEADING-SUPPLEMENTAL COMPLAINT-MATERIALITY—NEW CAUSE OF AC

TION. Plaintiff sued to foreclose a second chattel mortgage against the mort.

gagor and a prior mortgagee who had held in pledge some of the mort. gaged property, alleging a certain amount due, and that the defendant mortgagee had disposed of the property without receiving full value, and prayed for judgment charging such mortgagee with the value of

NOTE.-SETTING UP NEW CAUSE OF ACTION BY SUPPLEMENTAL PLEADING.

a. Statute.
b. General rule.
c. When original complaint does not state cause of action.
d. Cause of action arising after conimencement of suit.
e. What facts constitute new cause of action.
f. What facts do not constitute new cause of action.

a. Statute.

Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding alrcady taken in the action, is not affected by the supplemental

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