
    Clare L. Jacobs, Respondent, v. Peter J. Callan, Appellant.
    Third Department,
    March 8, 1911.
    Venue —change of venue—residence of party.
    Where the summons lays the venue in one county and the complaint in another county, the complaint controls.
    Motion to change the venue in an action on contract upon the ground that both parties resided in the county to which the change was desired. Moving affidavits examined, and held, that the plaintiff failed to establish that he had a residence in the county where the venue was laid, but resided in the same county with the defendant, so that the venue should be changed to that county.
    A party who registers and votes in one county where he has a dwelling house cannot claim a residence in another county merely because he takes occasional meals in a hotel in that county.
    Houghton, J., dissented.
    Appeal by the defendant, Peter J. Callan, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 13th day of December, 1910, denying the defendant’s motion to change the place of trial of the action.
    
      Neile F. Towner, for the appellant.
    
      Edgar T. Brackett and Hiram G. Todd, for the respondent.
   Betts, J.:

This action was commenced on or about August 12, 1910, by personal service of the summons upon the defendant. In the summons the venue was laid in Columbia county. The complaint was served on August 30, 1910 ; in it the venue was laid in Albany county. The action was brought for damages occasioned by an alleged breach of contract or contracts on the part of the defendant. The title to real estate is not involved.

It was held in Tolhurst v. Howard (94 App. Div. 439) that the place of trial named in the complaint controls the venue under circumstances practically similar to those arising here.

An amended answer was served October 31, 1910, at which time the defendant demanded that the place of trial be changed to the proper county, viz., the county of Columbia.

The motion is made on the ground that Columbia, county is the proper county for the trial of the action, the defendant alleging that both the plaintiff and the defendant resided in Columbia county at the time of the beginning of the action.

There is no doubt from an examination of the record here that the defendant resided in the county of Columbia within the meaning of section 984 of the Code of Civil Procedure at the time of the commencement of this action. His affidavit shows that he has resided continuously at Yalatie, in said county, since 1900 and during all that period he has maintained a house thei’e which has been occupied by himself and his family ; thaj; his son, who resides with him, has been a member of assembly from Columbia county for two years last past, and that the defendant during all such period has been registered and voted in said village of Yalatie including the election on ¡November 8, 1910, but he has temporarily occupied apartments and houses at other places prior to, but not since, Api'il 1, 1908.

As to where plaintiff resided at the time of the beginning of the action, her affidavit is that she is a resident of the city and county of Albany and has been a resident of said city and county since the year 1900, when she married Henry ¡R. Jacobs, who also has been a resident of said city during all of said period. She then recites various places where she and her husband have resided together in said city since her marriage and finally states that during the years 1909 and 1910 deponent and her said husband resided at the Hotel Hampton in said city ; that after the tenth day of January, 1910, deponent and her husband did not maintain an apartment at Hotel Hampton, but took a great many of their meals there and made it their headquarters while in Albany almost daily attending to their business in connection with the building of the Clinton Theatre.”

Her husband’s, Henry E. Jacob's, business has been the management of theatres in the city of Albany and he was contemplating the erection of a theatre on Clinton avenue and North Pearl street in said city during the'year 1909. Early in September, 1910, he took a lease of a theatre in the city of Troy and was managing the same at the time this motion was made.

The defendant Callan’s affidavit shows that the plaintiff at the time of the commencement of this action resided with her husband, Henry E. Jacobs, in the village of Valatie, Columbia county. The manager and clerk of the Hotel Hampton swear that neither the plaintiff nor her husband maintained any apartment or room at the Hotel Hampton since January 10,1910, nor occupied any room over night in said hotel since that time. One Edwin D. Howe’s affidavit shows that plaintiff purchased a farm and dwelling house adjoining his premises in said village of Yalatie about three or four years ago and that they have occupied the said premises continuously except two or three months in the winter, but that since January 1,1910, to the best of deponent’s recollection said Clare L. Jacobs and Henry E. Jacobs, her husband, have lived continuously in said premises, and the same have been open for them.” That Henry E. Jacobs registered in October, 1909, and voted in November, 1909, in Yalatie, and that he was also registered from said residence October 15, 1910.

Plaintiff’s affidavit shows that she purchased a farm at Yalatie in 1904, and she and her husband have spent their summer vacations at said farm each year since that time, but denies that she has a residence at Yalatie, except as a temporary abode during the summer months and vacation period.

It will thus be seen that she places her residence at the time of the beginning of the action August 12, 1910, as at the Hotel Hampton, while the manager and clerk swear that she has no rooms there, and has had none since the 10th of January, 1910. Her evidence is that she resides with her husband, and his residence is shown to have been in Yalatie for the purpose of voting in 1909, and registering in 1910 in October.

My conclusion is that under Washington v. Thomas (103 App. Div. 423) both parties resided in Columbia county at the time of the commencement of this action. One cannot well reside where he takes an occasional meal, has no rooms and never spends a night.

We think the order should be reversed and the motion granted changing the place of trial to Columbia county, on the ground that the defendant certainly resided there, and if the plaintiff did not reside there at the time of the commencement of the action her papers fail to disclose where she did reside.

All concurred, except Houghton, J , dissenting.

Order reversed, with ten dollars costs and disbursements to the defendant, and motion granted, with ten dollars costs to abide the event of the action.  