North Shore Industrial Co. v. Randall , 95 N.Y.S. 758 ( 1905 )

. McLaughlin, J.:

This action is brought to procure a judgment declaring void and to have canceled of record a mortgage held by the defendant ■Randall on certain real estate situate in the county of Suffolk.

The venue was laid in the county of New York. Before answering the defendant Randall demanded, in compliance with section 986 of the Code of Civil Procedure, that the place of trial be changed from the county of New York to the county of Suffolk,1 the proper county. The demand not being complied with he thereupon made a motion that the place of trial be changed in accordance with his demand. The mortgagor, one Warden, was a codefendant,. but he had not at that time appeared in the action nor had his time to do so expired. The motion was denied on the ground" that Warden should have had notice and Randall has appealed.

I think the motion should have been granted. An action affecting an estate, right, title, lien or other interest in real property must be tried in the county where the real property is situate. (Code Civ. Proc. § 982.) The mortgage sought to be annulled was a lien on real property situate in the county of Suffolk. The defendant appearing and contesting had .the right, under the law, to have the place of trial changed to that county. Such change of venue being á matter of absolute right in Randall, whose mortgage was sought to be annulled, it was the duty of the court to have granted the motion, notwithstanding there was another defendant who had had no notice of the application. The other defendant had not appeared-in the action so as to be- entitled, in strict right, to notice of the motion! If he had been served with notice, appeared and opposed the motion, he could have done nothing to have prevented the order changing the place of trial because the court had no discretion and should have granted it as a matter of course upon the demand of any defendant whose rights were sought to be affected. ' Such seems to be the effect of section 986 of' the Oode of Civil Procedure, which provides that the defendants attorney may serve upon the plaintiff’s attorney, before or with the answer, a written demand that the venue be changed to the proper county, giving the plaintiff’s attorney five days to" comply therewith, and if written consent be not given by the plaintiff’s attorney within that time the defend- .■ ant’s- attorney may,- within ten - days thereafter, serve notice; of a motion to change the place of trial. Manifestly, all this may be done within the twenty days allowed by section 421 of the Code of Civil Procedure for answer and before all codefendants have appeared or even been served with process,. Hence,, it seems plain" that service óf a notice upon a codefendant is not contemplated npr a necessity. -

The order appealed from, therefore, must be reversed, with ten " dollars costs and disbursements, and .the motion granted, with ten dollars costs. . i

Patterson, Ingraham and "Laughlin, JJ., concurred; O’Brien, P. J., concurred in, result.

Order' reversed, with ten dollars costs and disbursements, arid motion granted, with ten dollars costs.