Marsh v. Lowry

By the Court, Mitchell, P. J. The action is for the foreclosure of a mortgage on lands in Westchester county. The place of trial indicated by the complaint and subsequent proceedings is the city of New York. After judgment, and a sale of part of the property, it is objected that the place of trial should have been in Westchester county. The code declares that actions must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, among other things, when the action is for the foreclosure of a mortgage on real property. (§ 123.) But it is equally explicit that if the county designated for that purpose in the complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties or by order of the court, as provided in this section. (§ 126.) This section does expressly authorize the court to change the place of trial, when the county designated -for-that purpose in the complaint is not the proper«county. Thus a demand to change the place of trial, and an -order of the cour.tjthereon, are essential to change the place of trial, even in local causes of action, and where the complaint does not state the proper county. ■ The last section places the application to change the place of trial, because the cause of action is local, on the same footing, in one respect, as when the motion is founded on the convenience of witnesses : in both cases there must be a demand or motion to change it; and in both there must be a consent to the change, or an order of the court. The proceedings are regular in the county first selected, unless the consent to change be given, or an order of the court be made, to that effect. The application was also made to set aside the sale, on the ground that the property was sold much below its value. On notice to the various purchasers none object but one. The defendants’ affidavits tend to show that the property sold for [199] one-fifth of its value. The purchaser who objects admits that what he bought sold for less than half its value. The sale was advertised for one day and postponed to another by the plaintiff, on account of the extremely low prices at which sales were made. The motion to rescind the sales as to those who do not oppose must be granted, as by default. As to the other purchaser he does not strenuously oppose, but he should receive a fair indemnity, for his costs and counsel fees ; something for the loss of a bargain. Let him be paid $250 to cover all his losses and in lieu of the gain which he might have made. And let the property be readvertised : the defendants also first paying to the plaintiff $10, the costs of this motion, and all the costs on the former advertisements and sales. [New York General Term, December 27, 1857. Mitchéü, Olerke and Dañes, Justices.]