Roche v. . Marvin

Miller, J. The only question arising upon this appeal is whether the action was a local one, and being such,the place of trial should have been in the county of Saratoga. The appellants.claim that the plaintiff in this action seeks to establish an equitable interest in real estate in the county of Saratoga, the legal title of which is vested in the defendants, which entitles her to a share of the rents and profits of said real estate, and that the action is within the letter and spirit of section 982 of the Code of Civil Procedure, which provides; among other things, that an action must be tried in the county in which the subject of the action, or some part thereof, is situated, and where the action is “ to procure a judgment establishing, *400 determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, lien' or other interest in real property or chattel real.” We think that this position cannot be maintained. This action is brought on a certificate signed by the defendants, which certifies that the plaintiff is entitled to an interest in certain property known as the United States Hotel at Sara-toga Springs, the legal title to which is held in trust by the defendants, and in the net rents and profits thereof, and the plaintiff claims to recover the dividend declared by the defendants as such trustees on said certificate and payable to the plaintiff. The answer of the defendants sets up payment as a defense, thus admitting the validity of the certificate set forth in the complaint. The complaint alleges that a certain portion of the profits received had been set apart and appropriated from the entire fund in the hands of the trustees for the use and benefit of the plaintiff. The action being brought to recover the sum which the plaintiff claims, does not relate to real estate, nor is it commenced to enforce any lien against real estate, but to recover a dividend declared on the certificate 'set forth in the complaint. It appearing from the pleadings that such demand is due from the defendants to the plaintiff, an action lies in the nature of assumpsit to recover the dividend as a demand due from the defendants to the plaintiff as the holder of such certificate. The certificate is an obligation on the part of the defendants to pay in a certain contingency, which has occurred, and by means thereof the defendants became liable for the amount claimed. It is in the nature of an agreement or a promise which bound the defendants. The action is for moneys received by the defendants which they were bound to apply upon the certificate. It was a contract on their part, and upon the trial of the action no equitable right would be involved. The right of the plaintiff under the certificate was admitted by the pleadings, and the burden of proof would be upon the defendants to show that the demand had been paid. On the part of the plaintiff she *401 had nothing to prove, and her ease was established as the pleadings stood. Under these circumstances there is no foundation for the nl aim that the action is of an equitable character which affects real estate and comes within the provisions of the Code to which reference has been had. The order should be affirmed. All concur. Order affirmed.