
    
      Northern District
    
    No. 5173
    GERALD PACELLI v. CARLO PINIERE
    (February 23, 1958)
    Case tried to Magnuson, Sp. J., in the Third District Court of Eastern Middlesex.
    No. 3829 of 1956.
   Northrup, J.

This is an action of contract for labor and materials brought by a common writ in the Third District Court of Eastern Middlesex. The plaintiff is a resident of Cambridge, in the County of Middlesex. The defendant is a resident of Boston in the County of Suffolk and does not reside or have a usual place of business in Middlesex County.

The defendant, after service of the writ upon him, appeared specially and filed a motion to dismiss on the grounds that the Third District Court of Eastern Middlesex, by reason of improper venue, lacked jurisdiction to hear and determine the matter. The defendant’s said motion to dismiss was allowed after hearing and the plaintiff duly claimed a report.

We find no error in the allowance by the court of the defendant’s motion to dismiss. G. L. c. 223, §2 requires that such transitory actions, commenced by a common writ in a District Court, be brought in the county where the defendant lives or has a usual place of business. Since the defendant in this case did not reside in Middlesex County and had no usual place of business therein, this action could not properly be brought over his objections in any District. Court in said County and his motion to dismiss was rightly allowed. Upon the facts in the case at bar, the court was not only warranted, but required, to allow the defendant’s motion.

Samuel J. Foti, for the plaintiff.

Tangusso and Tangusso for the defendant.

The provisions of G. L. c. 223, §2, cited by the plaintiff, relate to the venue in actions brought by trustee process and are wholly inapplicable to the case at bar. The report is ordered dismissed.  