Knickerbocker Life Insurance v. Clark , 29 N.Y. Sup. Ct. 506 ( 1880 )

Barrett, J.:

The defendant, Johnson, has in his possession a satisfaction-piece of a judgment recovered by the plaintiff against the defendant Nelson.

This action is brought to restrain Johnson from delivering such satisfaction-piece to Nelson, and to compel him to deliver it up to the plaintiff to be canceled.

One of the defendants moved to change the place of trial to Kings county, substantially upon the ground that tile judgment against Nelson is a lien upon certain real estate in Kipgs county; and that the effect of sustaining the plaintiff’s actioki ..vrall'be to establish or maintain such lien. The motion was made under section 982 of the New Code, which extends the class of actions triable in the county in which the subject of the action or some part thereof is situated, to those brought “ to recover or to procure a judgment,. establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, lien, or other interest in real property or a chattel real.”

We see no ground upon which this motion could have been granted. The complaint shows the' ownership by the defendant Nelson of certain real estate in Ulster county, but of none in Kings county. The defendant seeks to obviate this objection by an affidavit stating that the property in, Ulster county has been sold, and that the only real estate now owned by Nelson consists of certain lots in Kings county. We think that this affidavit has no just bearing upon the question. Whether the action is within section 982 of the Code depends upon the complaint. It is that which should govern.. The plaintiff, therein states in clear and precise terms the subject of -his action, and fells us its purpose. These need no interpretation from extrinsic sources. The subject of the action is not the real estate in Ulster, nor yet that in Kings county, but the satisfaction-piece and the judgment. The purpose is the cancellation of the satisfaction-piece, and a judicial declaration of the continued integrity and vitality of the. judgment. ■ The statute contemplates the direct object to be attained, not, the resulting incident.

A defendant may have real estate in every county in the State. He may have personal property upon which an execution has been levied. He may have equitable assets upon which a creditor’s bill and injunction have fastened a lien. . Yet none of these can be said to. be, within section 982 (supra), the subject of an action brought to-set aside or cancel a satisfaction-piece of the judgment which lies at the foundation of them all.

Nor can such an action be said to have for its object the recovery or procurement of a judgment establishing or otherwise affecting a right, lien,/or other interest in real property. That may be one; of the consequences of success, but it will be no part of the decree.. The decree -Will be limited to the findings as to the satisfaction-piece. It can have nothing to do with the merely resulting incident, —e. g., the ultimate satisfaction of the judgment from amy property of the defendant which the plaintiff may be able to discover.

We think the order denying the motion to change the place of trial was right and should be affirmed, with $10 costs, and disbursements of the appeal.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with $10 costs, and disbursements.