
    EATON v. HALL.
    (Supreme Court, Appellate Division, Second Department.
    January 9, 1903.)
    Í. Justices’ Courts—Land Titles—Removal of Cause—Change of Venue.
    Code Civ. Proc. § 2953, provides that, where an action has been discontinued in a justice’s court because the answer discloses a question of title to realty, the “new action,” which the plaintiff is entitled to bring in lieu thereof, is to be brought in either the county court or supreme court of the justice’s county, at the plaintiff’s election. ‘Heló) that, where the “new action” is commenced in the supreme court of the justice’s county, the defendant is not entitled, as a matter of right, to a change of venue to the county where the land is situated.
    Appeal from special term, Kings county.
    Action by Walter R. Eaton against Charles W. Hall. From an order denying a change of venue, defendant appeals. Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.
    Lemuel Skidmore, for appellant.
    Walter R. Eaton, for respondent.
   HIRSCHBERG, J.

The action was brought in the municipal court of the city of New York, borough of Brooklyn, to recover damages for a trespass alleged to have been committed in the borough of Manhattan. The defendant having, in his answer, set forth facts showing- that the title to real property would come in question upon the trial, the action was discontinued in the municipal court, and a “new action” brought, pursuant to the provisions of section 2953 of the Code of Civil Procedure. The new action was brought in the supreme court in Kings county. The defendant, with his answer, duly served a demand that the place of trial be changed to New York county as the proper county, and, the plaintiff not consenting to such change, a motion was made by the defendant for an order making the change, and from the order denying such motion this appeal is taken.

No question is raised but that the defendant would be entitled, as a matter of right, to the relief sought, had the action been originally commenced in the supreme court. But it is insisted that, inasmuch as it was commenced in the municipal court in the territory comprising Kings county, the new action must be tried in that county as an action originally commenced in the lower court, and not subject to the provisions of the Code relating to the change of venue'. The contention seems to be supported by authority. In Cook v. Nellis, 18 N. Y. 126, it was held that an action commenced in the county court or supreme court under sections 55 and 56 of the former Code, upon the discontinuahce of an action in justice’s court involving the title to land, is an action originally commenced in a court of a justice of the peace. In Brown v. Brown, 6 N. Y. 106, it was held that no appeal lies to the court of appeals from a judgment rendered in the supreme court in such an action. In the recent case of Sidwell v. Greig, 157 N. Y. 30, 51 N. E. 267, followed in Camacho v. Printing Co., 158 N. Y. 664, 52 N. E. 1123, it was held that the designation of the action as a “new action” in the Code of Civil Procedure did not change the origin of the suit so as to enlarge the remedy by appeal, and, accordingly, that an action commenced in justice’s court, but presented in the supreme court because of the interposition of an answer of title, was not appealable to the court of appeals. “The action,” said the court, page 32, 157 N. Y., and page 267, 51 N. E., “was commenced in another court than the supreme court, and it was transferred thereto by force of the statute and under the joint action of the parties.” In Rundle v. Gordon, 27 App. Div. 452, 50 N. Y. Supp. 353, it was held that the provisions of section 820 of the Code of Civil Procedure were not applicable to such an action, and that the county court to which the action was transferred could not order an interpleader.

The provisions of the Code prescribing the proper county for a trial, and authorizing a removal in case such county is not designated in the complaint, have no application to actions brought in justice’s court or in the municipal court. In Graves v. McICeon, 2 Denio, 639, it was held that although trespass quare clausum fregit is a local action, and, when originally prosecuted in the supreme court or in a court of common pleas, must be brought in the county where the land is situated, yet such action may be brought in a justice’s court of a different county from that in which the land lies, and that in such case the appellate jurisdiction of the common pleas, where a cause is brought into that court by certiorari, is not affected by the local character oí the original action. Lap-ham v. 'Rice, 55 N. Y. 472, was an action against public officers brought in another county, under a statute which provided “that actions brought by the county or town officers of one county in their official capacity against the county or town officers of another County in their official capacity shall be laid in some county adjoining the county of the defendants, except the county of the plaintiff,” and it was held that the proviso was not applicable to justices’ courts. The court said (page 476):

“The language of the proviso shows that it was not intended to apply to justices’ courts. It provides, not that the action shall be brought, but that it shall be laid, in an adjoining county to that of the defendant other than that of the plaintiff. This evidently refers to cases where the plaintiff or the court have the power to fix the venue or place of trial in the county designated, and the effect of the proviso is to restrict this right of designation to some county adjoining that of the defendant other than that of the plaintiff. This clearly has no application to justices’ courts, in which there is no such right of designation, but jurisdiction of the persons depends entirely upon the residence or presence of the parties, not in the county, but in particular towns. This construction is not entirely unsustained by judicial authority. At common law, an action of trespass for an injury to real estate was local, and could only be tried in the county where the real estate was situated. I11 Graves v. McKeon, 2 Denio, 639, it was held that this rule had no application to justices’ courts; that the action might be brought before a justice of another county, and, in case of a plea of title or an appeal, the court of common pleas of the county where the action was brought would have jurisdiction.”

In La Rue v. Smith, 153 N. Y. 428, 47 N. E. 796, the appeal was disposed of upon the merits, as the “fairest way” under the circumstances, although Judge O’Brien considered that the title to real estate had not come in question, and the action could therefore be properly treated for all purposes as one originally commenced in the supreme court.

The question of the general power of the supreme court in the premises is not considered, nor is the right to a change of the place of trial for the convenience of witnesses or for any other cause than that under consideration involved. All that is decided is that the effect of section 2953 is to require the “new action” to be brought, at the plaintiff’s election, either in the supreme court or the county court of the justice’s county, and that, when it is brought in the supreme court, the defendant has no absolute right to the prosecution of the action under the circumstances of this case in the county where the real estate is situated.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur,  