
    Jayne Prince et al., Plaintiffs, v. Franklin National Bank, Defendant.
    Supreme Court, Special Term, Nassau County,
    February 10, 1970.
    
      Sahn, Shapiro & Epstein for defendant. Goldwater & Flynn for plaintiffs.
   Mario Pittoni, J.

Defendant’s motion to change the place of trial of this action from Queens County to Nassau County is granted. Plaintiffs’ request that defendant’s motion be denied or alternatively that the motion be adjourned until after an examination before trial is had is denied.

This action is for the alleged conversion by defendant bank of stocks owned by plaintiffs (residents of Queens County) and held to secure a loan made to C. John Prince.

Section 94 of title 12 of the United States Code grants to national banking associations the privilege of having the venue of any action brought against it located ‘1 in any State * * * court in the county * * * in which said association is located ”. It is uncontroverted that defendant Franklin National Bank is located ” in Nassau County. Furthermore, the mere presence of branch offices in Queens County does not locate defendant bank in that county for venue purposes (Leonardi v. Chase Nat. Bank of City of N. Y., 81 F. 2d 19 [2d Cir., 1936], cert. den. 298 U. S. 677). “ The provisions of the Federal statute are mandatory upon the State courts ” (Stephen-Leedom Carpet Co. v. Republic Nat. Bank of Dallas, 25 A D 2d 645).

There is no doubt that all of plaintiffs’ contacts with defendant bank regarding the loan took place in Nassau County. Plaintiffs contend, however, that if custody and sale of the stocks by defendant occurred in Queens County then defendant would have waived its statutory privilege. Assuming this contention to be true, no waiver is found. For a waiver to exist, defendant’s conduct must be so indicative of an intent to relinquish the statutory privilege that all other reasonable explanations of its conduct are negated (Buffum v. Chase Nat. Bank of City of N. Y., 192 F. 2d 58, [7th Cir., 1951], cert. den. 342 U. S. 944). Defendant’s conduct does not evidence such intent.

Accordingly, no further hearing as ordered in Schaefer Sons v. Watson (26 A D 2d 659), is required and defendant’s motion to change the place of trial from Queens County to Nassau County is granted.  