
    Nathan J. Packard and Levi Levy, Plaintiffs v. Henry Hesterberg, Sheriff of the County of Kings, Defendant.
    (Supreme Court, Oswego Special Term,
    July, 1905.)
    Place of trial—Change to proper county — Code of Civil Procedure, § 983 — Affidavit of merits not required.
    An action against the sheriff of Kings county for neglect to seize certain chattels located therein, as commanded by a warrant granted by the county judge of Onondaga county, must, under section 983 of the Code of Civil Procedure, he tried in Kings county; and a motion to change the place of trial, from Onondaga county to Kings county, must he granted.
    A change of place of trial to the county where the statute requires an action to he tried is matter of right and an affidavit of merits, upon the motion to change the venue, is unnecessary.
    Motion to change the place of trial.
    
      Charles H. Hyde (Irving D. Vann, of counsel), for motion.
    William Rosenbloom, opposed.
   Wright, J.

The complaint alleges that the defendant as sheriff of Rings county neglected for a period of more than nine months to seize certain chattels located in Rings county as commanded by a warrant of seizure, granted by the county judge of Onondaga county, and that said sheriff failed to make a return to the county of Onondaga.

The motion to change the place of trial from Onondaga county to Rings county must be granted.

The alleged failure to seize the chattels constitutes a cause of action arising in Kings county, which, therefore, must be tried in that county. Code Civ. Pro., § 983.

The inventory must be filed in the county where the property is attached (Id., § 654), that is, in Kings county. The complaint does not allege that this has not been done.

The objection to the affidavit of merits is not forceful. Change of place of trial to the county where the statute requires it to be tried, may be asked as a matter of right, and an affidavit of merits is unnecessary. Iron National Bank v. Dolge, 46 App. Div. 327.

Motion granted, with costs.  