
    Louis Greve, Resp’t, v. Ætna Live Stock Insurance Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October, 1894.)
    
    Trial—Stipulation—Place.
    A stipulation, in a contract of insurance, limiting the place of trial to a-particular county is enforceable.
    Appeal from an interlocutory judgment entered on an order sustaining a demurrer to one of the defenses set up in the answer.
    
      T. W. McArthur, for app’lt; Robert Goeller, for resp’t.
   Parker, J.

This action is brought on a policy of insurance, the venue being laid in New York county. The answer alleged as one of its defenses that the policy of insurance upon which the action was based provided : “This policy of insurance is a contract made • and to be performed in Glens Falls, Warren county, New York, and should be construed only according to the laws of the state of New York and the company’s articles of incorporation ; and any suit or action, at law or in equity, for the recovery of any claim or enforcement thereof hereunder, shall be brought and maintained, and shall be sustainable only, in the courts of said Warren county, state of New York; and in any suit, action, or proceeding for the recovery or enforcement of any claim whatever, under any certificate or policy issued by said company, the place of trial shall be in the said county of Warren, state of New York.”

To- this defense plaintiff interposed a demurrer, which was sustained at special term,—whether rightly, presents the only question on this appeal. The position of the plaintiÉ was and is that, while he became a party tó a contract" which provided that any suit to enforce it should be brought in the courts .of Warren county, he is not bound by it, or rather that the court is not bound by it, because it is an agreement in advance to oust the court of jurisdiction ; and if the court for that reason refuses to recognize the agreement, and retains the case for trial in the county where plaintiff lived and caused the venue to be laid, the result desired will be as effectually accomplished. Our attention has not been called" to any decisions' in this state where the court has considered whether the stipulation of the parties will be permitted to determine the place of trial of actions. The question has received some attention in other jurisdictions, and without exception the decisions either directly sustain or tend to support the position taken by the court at special term. Nute v. Ins. Co., 6 Gray, 174; Hall v. Ins. Co., Id. 185; Amesbury v. Ins. Co., Id. 596; Boynton v. Ins. Co., 4 Metc. (Mass.) 212 ; Reichard v. Ins. Co., 31 Mo. 518; Guaranty Trust & Safe Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137; Insurance Co. v. Morse, 20 Wall. 445; Greenh. Pub. Pol. 466; Crane v. French, 38 Miss. 503. Unless there are substantial grounds of public policy requiring that' the courts shall refuse to recognize or enforce the stipulations of parties naming the counties in which such litigation as may arise out of the contract shall be tried, I see no sufficient reason for denying the right of parties to make and enforce such an agreement. In the leading case in support of respondent’s position (Nute v. Ins. Co., supra), the court introduced its discussion of the question of public policy as follows: ‘‘We place no great reliance upon considerations of public policy, though, as far as they go, we think they are opposed to the admission of such a defense.” While, on this appeal, the views of counsel upon the question involved were presented with much care, whether the contract is one against public policy was given but a passing notice. From such attention as we have been able to give to the question, it does not seem to us so manifestly .against a sound public policy as to make it the duty of the court to refuse enforcement of the stipulation in the contract relating to the place of trial. The suggestion that the court should resent this attempt to oust it of jurisdiction is unworthy of extended notice. The supreme court which administers justice in Warren county is the same supreme court as the one having general j urisdiction in law and equity in New York county. The legislature has not the power to deprive the supreme court of any portion of its jurisdiction, but it would not be pretended for a moment that, when it prescribed and limited the counties within which a resident plaintiff might bring his action, it was ousting the supreme court of jurisdiction, because, but for the restriction, the action might be brought in some other county. The further reason assigned is that the statute determines the counties in which an action shall be commenced, and the agreement of parties cannot be permitted to have the effect of a repeal of the statute for their benefit. The purpose which the statute has in view is to further the convenience of parties, and the benefits assured by statute may be waived as readily as other rights. The argument of the court in Re New York, L. & W. R. Co., 98 N. Y. 447, conclusively disposes of this question. In that case the owner of certain real estate which the corporation desired to acquire for railroad purposes entered into a contract with it, by which she agreed to sell and convey the premises, and the corporation agreed to purchase for a price to be ascertained in proceedings tó be instituted by the corporation under the general railroad act. The agreement named the commissioners which it was stipulated should be appointed in the proceedings. It reserved all rights of appeal given by law in such proceedings. Subsequently such proceedings .were instituted, the persons named in the agreement were appointed as commissioners, a hearing was had, and a report made, from which an appeal was taken to the general term, which reversed the award and ordered a new appraisal, but refused to appoint new commissioners, on the ground that the court had not the power. From that portion of the order refusing to appoint new commissioners an appeal was taken to the court of appeals. That court affirmed the order, and, in the course of its opinion, said : “But the agreement of the parties bound them, and concluded the court, in that proceeding; and the court was bound as between the parties, to observe, enforce, and carry out the agreement. Parties, by their stipulation, may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional, rights. They may stipulate for shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes, such limitations being frequently found in insurance' policies. They may stipulate that the decision of a court shall be final, and thus waive the right of appeal. And all such stipulations, not unreasonable, not against good morals or sound public policy, have been and will be enforced ; and generally all stipulations made by parties for the government of their conduct or the control of their rights in the trial of a cause or the conduct of a litigation are enforced by the courts.”

The order sustaining the demurrer, and the interlocutory judgment .entered thereupon, should be reversed, with costs and printing disbursements, and the demurrer overruled, with costs.

O’Brien, J.

(concurring).—Unless contrary to public policy or good morals, courts will enforce contracts as made by the parties, when reasonable and enforceable without public inconvenience. A stipulation or condition by a resident not to bring suit outside a particular county is not opposed to public or good morals. Whether reasonable, or enforceable without great inconvenience, will depend on the facts appearing. Here the condition is not assailed for fraud or mistake, it being conceded by the demurrer that the contract was deliberately entered into, without fraud or mistake. Conditions ousting courts of jurisdiction, or enforceable at the expense of great public inconvenience, have been declared inoperative. A condition such as is here involved has never been judicially condemned in this state, and I think it would be going too far to hold that parties may not freely and fairly enter into a contract which is not shown to be either unconscionable, unreasonable, contrary to public policy or good morals, and thereafter have it enforced as made. I therefore concur with Mr. Justice Parker.

Follett, J., did not vote.  