
    GETMAN v. MAYOR, ETC., OF CITY OF NEW YORK.
    (Supreme Court, General Term, Third Department.
    November 22, 1892.)
    1. Action against City op New York—Venue—Constitutional Law. Laws 1882, c. 410, § 1103, providing that the supreme court in the first judicial district and the court of common pleas and superior court of New York city shall have exclusive jurisdiction of all actions or special proceedings wherein such city is a defendant, while unconstitutional in so far as it attempts to limit the jurisdiction of the supreme court, is valid as a statute fixing the place of trial of an action against the city.
    2. Same—Removal. Under Laws 1882, c. 410, § 1103, the city of New York may have an action against it removed to the city and county of New York; but, if it fails to so move, the court in which the case was begun has jurisdiction to try and decide it.
    Appeal from special term, Saratoga county.
    Action b.y Mahala L. Getman against the mayor, aldermen, and commonalty of the city of New York for injuries alleged to have been caused by falling on the sidewalk on 106th street, in that city. From an order denying a motion to change the place of trial from the county of Saratoga to the city and county of, New York, defendants appeal. Reversed.
    Before making such motion, defendants demanded, in writing, that the place of trial be changed to the city and county of New York, ón the ground that that county was the proper place of trial.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    William H. Clark, (Terrence Farley, of counsel,) for appellants.
    William P. Butler, for respondent.
   MAYHAM, P. J.

This motion to change the place of trial was, as appears by the order, denied by the learned justice at special term, not in the exercise of the discretion vested in the special term on. motions of this character, but upon the sole ground that section 1103 of chapter .410 of the Laws of 1882, by which actions against the mayor, aider-men, and commonalty of the city of New York were made local, and triable in the city and county of New York, is unconstitutional. The only question raised for consideration on this appeal is as to the correctness of that conclusion. The language employed in .the section referred to upon this subject is as follows:

“The supreme court of the first judicial district, the court of common pleas, and the superior court shall have exclusive jurisdiction of all actions or special proceedings wherein the mayor, aldermen, and commonalty thereof are made parties defendant. ”

The language of this act relates to the jurisdiction of the court, and not to the methods of ■ proceeding in the court after it has acquired jurisdiction. The legislative attempt to confer on the courts named in the act exclusive jurisdiction, by necessary implication, excludes the supreme court in any other part of the state from entertaining jurisdiction of an action against the mayor, aldermen, and commonalty of New York, and thus deprives the court having general jurisdiction of its exercise of that jurisdiction over a municipality or artificial person within its territorial jurisdiction. This, we have held, is a. violation of article 6, § 6, of the state constitution, which confers upon the supremé court jurisdiction as wide as the boundaries of the state, and embraces every person, natural or artificial, within its boundaries. Mussen v. Granite Works, (Sup.) 18 N. Y. Supp. 267. It is true that this constitutional provision does not prohibit the legislature, in a proper case, from fixing the place of trial of an action, or from declaring what are local and what are transitory actions, and we are left, on this motion, to determine whether this provision of the statute, while unconstitutional, in so far as it restrains the jurisdiction of the court, is not valid as a statute for the purpose of fixing the place of trial of. an action against this municipality. This motion does not proceed upon the theory that the bringing of this action is a nullity because not brought in New York county, but rather, treating the action as well brought, seeks to change the place of trial from the county of Saratoga to the county of New York, because, by section 1103 of chapter 410 of the Laws of 1882, New York county is the county in which it must be tried. The question involved is not precisely like the one that was before this court, and disposed of, in 18 N. Y. Supp. 267, supra. In. that case the demurrer struck at the very root of the action. It assumed that, by the provisions of section 1103 of the statute, the jurisdiction of the court was restricted, and that the supreme court of the state was shorn of the power of exercising its jurisdiction over a party within the state limits. On this motion the jurisdiction of the court of the persons and subject-matter is recognized and conceded, but the place of trial is sought to be regulated by the statute. This, I think, may be done, provided this section, by reason of its being prosecuted.against the municipality in this form, is made, a local action by this provision of statute While the language of this act is broad enough, if the legislature had the power, to limit the territorial jurisdiction of the supreme court, and to deprive the court outside of the county of New York of the exercise of any of its judicial functions in an action against the mayor, aldermen, and commonalty of that city, and, as we have seen, is to that extent unconstitutional and void, yet I am inclined to the opinion that the legislative intent was only to make actions prosecuted against the city in that form local actions, and to make them triable in that county, and that the action, notwithstanding that provision of statute, might be legally tried in Saratoga county, subject to the power of the court, on motion, to change it to the proper-county, under the provisions of section 985, Code Civil Proc. That section provides that—

“If the county designated in the complaint as the place of trial is not the proper county, the action may, notwithstanding, be tried therein, unless the place is changed to the proper county upon the demand of the defendant, followed by the consent of the plaintiff or the order of the court. ”

If follows, therefore, that the action was properly brought in Sara-toga, so far as giving the court jurisdiction of the parties and subject-matter, subject to the right of the defendant to have the place of trial changed to the proper county, and that section 1103, c. 410, Laws 1882, could not, and does not, divest the court of jurisdiction, but only affects the location of the action, as to the place of trial; and this construction was given by this court at general term, in the second department, to the provisions of section 8, c. 853, Laws 1868, the provisions-of which are substantially like section 1103, now under consideration-. In that case the court changed the place of trial from Kings to New York, and, in discussing this statute, say:

“The intention of the legislature, evidently, was to require that actions-brought against the defendant should he brought in the city and county of New York. That the legislature has power to prescribe the county in which particular actions shall be brought and tried admits of no dispute. ”

After this judicial construction of the effect of 'the provisions of section 8, c. 853, Laws 1868, the same provision was incorporated in section 1103, c. 410, Laws 1882, and we think its provisions, under similar- circumstances, should receive a similar construction. The order of the special term should be reversed, with $10 costs and printing disbursements.

PUTNAM, J., not acting.

HERRICK, J.

I am not prepared to assent to the proposition that the legislature can compel all classes of action to be .brought and tried’ in a particular county, and thus deprive the supreme court of its power, in furtherance of justice, to change the place of trial from one county to-another. That is a power that was possessed by the supreme court at the time of the adoption of the constitution of 1846; a power which was possessed by the king’s bench of England. Actions relating to real estate have from, the beginning been regarded as local actions, and statutes or decisions rendering or holding them triable in the county where the real estate is situated do not affect this question. The supreme court never having had the- power to change the place of trial of such an action when it was brought in the county .where the real estate was situated, a statute confining the trial of such actions to the county where the property is situated deprives the court of no power it ever possessed. It seems to me that- a construction that holds that section 1103 of chapter 410 of the Laws of 1882 is to be regarded, not as limiting the jurisdiction of the court, but simply as making certain actions local, is rather too delicate to be substantial. The result is the same. The court cannot change the place of trial to any other county.

I see no reason to change the views expressed in Mussen v. Granite Works, (Sup.) 18 N. Y. Supp. 267. But it does not, it seems to me, follow that, because the law'in question is held unconstitutional, therefore the motion for a change of venue in this action should be denied. The constitutionality of the law is not necessarily involved in the decision of this case. The motion is made upon the grounds that New York is the proper county, and for the convenience of witnesses. The cause of action arose in New York county; the accident happened there; and, while the court has jurisdiction to try it in some other county, yet, when a motion is made to change the place of trial to the county where the transaction giving rise to the action took place, and no reasons are given for denying the motion, except such as are advanced in this case, I think the motion should be granted, and that the order of the special term should be-reversed..  