Margaret Burke, Respondent, v. Louis Frenkel, Appellant, Impleaded with Ella Frenkel

Margaret Burke, Respondent, v. Louis Frenkel, Appellant, Impleaded with Ella Frenkel. Change of venue—the affidavits as to residence must speak as of tlie dato of the commencement of the action. Upon a motion by the defendant in an action to change the venue thereof from the county of Kings, in which it had been originally laid, to the county of New York, the defendant submitted an affidavit alleging that the plaintiff was a resident of Chicago at the time of the occurrence out of which the cause of action arose, and that he, the defendant, was a resident of the city of New York. The plaintiff submitted an opposing affidavit in. which she stated that she resided in the borough of Brooklyn. Held, that both affidavits were defective in that the averments as to the residences of the respective parties were not addressed to the time when the action was commenced; That, there being no evidence before the court as to the residence of either of the parties at the time of the commencement of the action, the plaintiff was entitled, under section 984 of the Code of Civil Procedure, to designate any county for the purpose of trial. Appeal by the defendant, Louis. Frenkel, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1904, denying the said defendant’s motion to change the place of trial from the county of Kings to the county of New York. John Patterson, for the appellant. Frederick W. Sparks, for the respondent. [MAJORITY — Hibsohbebo, P. J.: '] Hibsohbebo, P. J.: ' The motion was based solely upon the ground that the county of New York was the proper county for the trial of the action, pursuant to section 984 of the Code of Civil Procedure, which provides. that such trial must be had in the county in which one of the parties resided at the time of its commencement. The defendant’s affidavit alleges that at the time of the occurrence from which the action arose, viz., September 15, 1903, the plaintiff was a resident of Chicago, in the State of Illinois. The action wTas commenced on January 20,1904. The plaintiff in opposition to the motion submitted her affidavit, verified February 13, 1904, stating that she resides at No. 336 Gates avenue, in the borough of Brooklyn. There w¡as no evidence offered tending to show -that she resided in the county of Kings at the time of the commencement of the action, and her affidavit must be deemed insufficient for the purpose of establishing that fact. (Radney v. Hutchinson, 50 N. Y. St. Repr. 420.) The affidavit of the defendant, however, is equally and similarly defective. It is verified February 19, 1,904, and merely alleges that at that time he was a resident of the city of New York, There being no evidence before the court that either of the parties resided in the State at the time of the commencement of the action, the plaintiff might be regarded as entitled to designate any county for the purpose of the trial, under the section of the Code of Civil Procedure cited, and the order should, therefore, be affirmed. All concurred. Order affirmed, with ten dollars costs and disbursements.