Nims v. Merritt

Russell, J. The sole ground of the motion to change the place of trial from the county of Jefferson to the county of St. Lawrence is that the former county is not the proper county, as the action is to collect upwards of $17,000 by force of a mechanic’s lien upon the property of Merritt & Tappan at Hannawa Falls on the Raquette river in the county of St. Lawrence, and, therefore, it is claimed that this is an action affecting real property which must be tried in the county where the property is situate, under section 982 of the Code of Civil Procedure. This claim would be undoubtedly correct were the action one for foreclosure of a mechanic’s lien. But after the filing of that lien Merritt & Tappan bonded the claim so that it ceased to be any longer a lien against the real estate, which is no longer affected by any issues in this litigation. The two sureties who signed the undertaking to release the lien are made parties defendant with the original contractors, and a judgment is asked for a recovery against the four for the amount established upon the trial. In this action there could be no foreclosure without a radical amendment of the complaint, and, as the premises appeared on the record at the time the action was begun, the same may be conveyed or incumbered by the owners without any burden whatever from the claim of the plaintiff. [59] Care must be taken to distinguish between an action affecting real estate which is triable in the county containing the property, and an action for the recovery of money in which the subject-matter of the investigation may be services rendered or materials furnished for real property. In the latter case the consideration of the situs might be important upon a motion to change the place of trial for the convenience of witnesses or to promote the ends of justice, but it does not afford the peremptory right sought to be enforced upon this motion. Motion denied, with ten dollars costs to abide the event. Motion denied, with ten dollars costs to abide event.