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Second Department, March, 1910.

[Vol. 137.

JAMES D. SEYMOUR, Respondent, v. ALBERT G. WHEELER, JR.,

Appellant.

Second Department, March 31, 1910.

Costs-action in Supreme Court, county of New York, which could have been tried in City Court section 3228, Code of Civil Procedure, construed - change of venue to other county for convenience of witnesses. Subdivision 5 of section 3228 of the Code of Civil Procedure, denying costs to a plaintiff unless he recover over $500 in an action brought in the Supreme Court, county of New York, against a defendant served in said county, if the action could have been brought, except for the amount claimed, in the City Court of said city, was designed to relieve the congested calendars of the Supreme Court in said county, and should be construed in the light of its purpose.

The words "triable in the county of New York," as used in said section, refer not to conditions as they exist when the action is brought, but to the conditions existing when the issues are tried.

Thus, where the venue of an action in the Supreme Court against a person served in the county of New York was originally laid in Westchester county, but after being changed to New York county at the defendant's instance was again changed to Westchester county for the convenience of witnesses and there tried, the plaintiff is entitled to costs, although he recovered less than $500, even though the action could have been brought in the City Court. This, because the object of the section was accomplished, as the Supreme Court in New York county was not burdened with the trial.

APPEAL by the defendant, Albert G. Wheeler, Jr., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of January, 1910, directing the clerk to tax costs in favor of the plaintiff.

Leon Kronfeld, for the appellant.

Frederick W. Sherman, for the respondent.

BURR, J.:

By subdivision 5 of section 3228 of the Code of Civil Procedure (added by Laws of 1904, chap. 557) it is provided that "In all actions hereafter brought in the Supreme Court, triable in the county of New York, * * * which could have been brought, except for the

App. Div.]

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Second Department, March, 1910.

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amount claimed therein, in the City Court of the City of New York and in which the defendant shall have been personally served with process within the counties of New York the plaintiff shall recover no costs or disbursements unless he shall recover five hundred dollars or more." Plaintiff's place of residence was distant about four miles from White Plains, the county seat of Westchester county, but was in the State of Connecticut. The action was brought to recover damages sustained by him through being bitten by defendant's dog. Defendant resided in the county of New York and was served with a summons therein. The action could have been brought in the City Court of New York. When the action was commenced plaintiff named in the summons and complaint Westchester county as the place of trial thereof. Defendant insisting upon his statutory right (Code Civ. Proc. §§ 984-986), the place of trial was changed to New York county. Thereupon plaintiff moved that it be changed back to Westchester county for the convenience of witnesses, and that motion was granted. On the trial plaintiff recovered a verdict for $125. A bill of costs, with notice of taxation before the county clerk, was served on defendant's attorney, and on the day named therein the clerk refused to tax said bill or allow plaintiff any costs on the ground that by force of the provisions of the Code above referred to he was not entitled to the same. A motion was thereupon made for an order compelling the clerk to tax such costs, and from the order granting said motion this appeal is taken.

Plaintiff's right to costs depends upon the construction to be put upon the words "triable in the county of New York "in the act in question. The purpose of the statute was to relieve the congested calendars of the Supreme Court in New York county by compelling, so far as practicable, actions to be brought in the City Court of New York if within its jurisdiction. (Patterson v. Woodbury Derm. Inst., 117 App. Div. 600.) In constructing its language the evil sought to be remedied must be kept in mind. (Endl. Interp. Stat. § 27.) The words "triable in the county of New York" may refer to the conditions as they existed when the action was brought, or to the conditions as they existed when the issues were tried. We think that the latter is the true construction. When the action was commenced in the Supreme Court it was not only possible to try the same in the county of New

Second Department, March, 1910.

[Vol. 137. York, but there was no other county in the State in which at that time, as matter of right, plaintiff could compel defendant to answer to his claims. (Code Civ. Proc. § 984.) If, however, Westchester county had been named as the place of trial, in the absence of objection by defendant, the action would have been triable there. (Code Civ. Proc. § 985.) If this had been the course followed, we think no one would claim that the provisions of subdivision 5 of section 3228 of the Code of Civil Procedure applied. When by order the place of trial was changed to Westchester county, the direction of the court stood in place of defendant's consent. Thereafter all subsequent proceedings must be had "in the county to which the change is made, the same as if it had been designated in the complaint as the place of trial." (Code Civ. Proc. § 988.) Trial of the issues and the taxation of costs are subsequent proceedings. The words "the same as if it had been designated" are equivalent to "the same as if it had been properly or originally designated." A different construction might lead to this result: A plaintiff resident in the county of New York might bring an action in the Supreme Court against a defendant resident therein, naming that county as the place of trial. For the convenience of witnesses or to promote the ends of justice, or because an impartial trial could not there be had, defendant might secure an order removing the case to another and distant county. (Code Civ. Proc. § 987.) The effect of this would be to relieve the congestion of the calendars of the county originally named as effectually as though the action had been brought in the City Court of New York. To hold under such circumstances that a verdict for plaintiff, recovered in the county to which the action had been removed, for a less sum than $500, deprived him of his right to costs, would be sacrificing the spirit of the statute to its letter. It may be urged that by force of the same reasoning if a resident of Erie county should begin an action in the Supreme Court against a resident of New York county, naming the former as the place of trial, and on defendant's motion the venue were changed to New York county, an unjust burden might be placed on the plaintiff and an undue advantage awarded to defendant. The difficulty is more apparent than real. Changing the place of trial for any of the reasons named in section 987 of the Code is somewhat in the nature of a favor, and it is quite within

App. Div.]

Second Department, March, 1910.

the power of the court granting the motion to impose as a condition. the waiver by defendant of the rights to which he would otherwise be entitled under the statute.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

JENKS, THOMAS, RICH and CARR, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

GUSTAV W. NEUMANN, Respondent, v. THE CITY OF NEW YORK and Others, Appellants.

Second Department, March 31, 1910.

Municipal corporations—street opening - extension of street beyond limit shown on map filed.

ocean.

Pursuant to chapter 670 of the Laws of 1869, relating to a permanent plan for roads and streets in towns of Kings county, and providing that no street shall be laid out except in accordance with the plan adopted, and that all streets afterwards opened or improved shall conform to such plan, West Twentythird street, in the town of Gravesend, was laid out as extending from Canal avenue to Surf avenue, but not extending beyond Surf avenue, to the Atlantic Chapter 482 of the Laws of 1875, as amended, provided that the supervisors of any county containing an incorporated city of over 100,000 inhabitants, when any territory within such county and beyond the city limits had been mapped out into streets, pursuant to law, could establish a plan laying out, opening or changing the line of such streets. Thereafter the supervisors of Kings county passed a resolution to alter the map filed under the prior statute so as to extend West Twenty-third street from Canal avenue to the Atlantic ocean, but the enacting clause stated that the old map was changed as shown on a new map annexed to the resolution. The new map, while showing the extension of West Twenty-third street beyond Surf avenue, did not extend the street to meet the high-water mark of the Atlantic ocean.

In an action by the owner of lands situated between said extension of Twentythird street, as shown on the new map, and the Atlantic ocean to restrain the city of New York from removing a building in an attempt to continue the street to the ocean,

Held, that the court had no jurisdiction to open the street beyond the point shown on the map filed in connection with the resolution of the supervisors. Neither the title of an act nor the preamble controls the plain words thereof, or extends its purview to objects mentioned in title or preamble, but not in the act itself.

Second Department, March, 1910.

[Vol. 137.

APPEAL by the defendants, The City of New York and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of April, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

James D. Bell [William A. Mathis and Archibald R. Watson, Corporation Counsel, with him on the brief], for the appellants.

John H. Judge, for the respondent.

BURR, J.:

Plaintiff is in possession of certain premises at Coney Island, situated upon the ocean front, upon which he has erected valuable buildings. Defendants claim that such buildings are within the lines of a street known as West Twenty-third street, which had been legally opened from Surf avenue to the high-water mark on the shore of the Atlantic ocean, and attempted to remove them. This action was thereupon brought to restrain interference therewith, and the learned trial court has found that, although the structures would be within the lines of West Twenty-third street if extended, the southerly line of West Twenty-third street as opened is northerly of that portion of the premises upon which the structures complained of have been erected. From the judgment entered on such decision this appeal is taken.

In December, 1885, a petition was presented to the Supreme Court, sitting in the county of Kings, praying for the appointment of commissioners for the purpose of opening West Twenty-third street from Canal avenue to the Atlantic ocean, in the town of Gravesend. Canal avenue is north of Surf avenue. Commissioners were appointed, and they caused a map to be filed of the land to be taken for the purposes of such improvement. Plaintiff claims, and the court has found, on sufficient evidence, that the opening commissioners' map not only showed the most southerly line of West Twenty-third street to be 522.03 feet southerly from Surf avenue on the westerly side and 535 feet southerly therefrom on the easterly side, but that it also showed the mean high-water mark of the Atlantic ocean to be several feet south of the southerly end of West Twentythird street as laid down and shown on said map. The evidence

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