
    The Knickerbocker Trust Co., as Trustee, Plaintiff, v. The Oneonta, Cooperstown & Richfield Springs Railway Co., Defendants.
    (Supreme Court, New York Special Term,
    July,' 1903.)
    Receiver in foreclosure — Motion, when premature — Order, where made.
    A motion for a temporary receiver, made by the plaintiff in an action brought in the county of New York to foreclose property situate in the counties of Otsego and Herkimer, was denied where it appeared that the defendant had before answer duly demanded, under Code Civ. Pro., § 986, that the action be tried in the proper county and that the five days allowed the plaintiff to consent to such
    • demand had not expired when the motion was argued.
    The court sent the motion to the Otsego Special Term as the proper tribunal.
    An order for the appointment of a receiver in foreclosure must be made in the county where the action is triable.
    Motion for the appointment of a receiver pendente lite.
    
    Davies, Stone & Auerbach (Julian T. Davies and Chas. E. Hotchkiss, of counsel), for motion.
    Sanders & Gray, opposed.
   Giegerich, J.

This is a motion for the appointment of a receiver pendente lite in an action to foreclose a mortgage made by the defendant upon real estate situated within the counties of Otsego and Herkimer in this-,State. The plaintiff’s place of residence is the borough of Manhattan, Hew York city, and the defendant’s is in Otsego county. The place of trial designated in the summons is Hew York county. The defendant, before service of the answer, served upon the plaintiff’s attorneys the written demand provided by section 986 of the Code of Civil Procedure that the action be tried in the proper county. The five days allowed the plaintiff to consent to such demand had not expired when the motion was argued, and consequently the defendant’s attorneys could not move for an order changing the venue. The defendant’s counsel insists that under Eule 80 of the General Eules of Practice and the so-called Haggerty Act (Laws of 1883, chap. 378, as amd. by Laws of 1896, chap. 282) this court has not jurisdiction of this motion, but it has been held that neither of these affect applications for the appointment of receivers in foreclosure proceedings. United States Trust Co. v. New York, W. S. & B. R. Co., 35 Hun, 341; affd., 101 N. Y. 478. I think, however, in view of the fact that Otsego is the proper county for the trial of the action, and that the defendant has served a written demand that it be tried therein, this court should not entertain this motion, notwithstanding the place of trial has not as yet been changed in the manner prescribed by chapter 10, title I, article 2 of the Code of Civil Procedure. It is urged by the plaintiff that the action is now pending in Hew York county and may be tried therein, if the defendant does not avail itself of the provisions of section 985 of the Code of Civil Procedure for a change of venue. A complete answer to this contention is found in the fact that the defendant has indicated its intention and taken the preliminary steps, and in fact, all the steps possible up to date to avail itself of such privilege, and hence it cannot be fairly claimed that the action is triable in this county. Moreover, it does not appear that there is such extreme urgency in the situation as to demand immediate action on the part of this court. Since an order for the appointment of a receiver in a foreclosure action can only be made in the county where the action is triable (United States Trust Co. v. New York, W. S. & B. R. Co., 35 Hun, 343), I am inclined, in view of all the circumstances, to adopt the suggestion of the defendant’s counsel, and refer the motion to the Special Term held in and for Otsego county, there to be brought on for hearing on twenty-four hours’ notice.

Ordered accordingly.  