Sarah Gould, Executrix, etc., Respondent, v. Henry M. Bennett, impleaded, etc., Appellant

Sarah Gould, Executrix, etc., Respondent, v. Henry M. Bennett, impleaded, etc., Appellant. (Argued November 12, 1874; decided November 24, 1874.) The provision of the Code (§ 24, as amended in 1862), authorizing- the adjournment of Special Terms to the chambers of any justice of the court residing in the district, does not authorize the transfer of the trial of a local action to another county, but was intended simply to facilitate the transaction of such business as might have been done in the county to which the term was adjourned. Accordingly, held, where the justice holding a Special Term in the county of W., at which an action for the foreclosure of a mortgage upon real 1 estate, situate in that county, was upon the calendar, adjourned the term to his chambers in the county of K., and proceeded to try the action at the adjourned term, against the objections of defendant, that the same was error. Also, held, that the error was not obviated by the fact, that, after partly trying the cause, the justice adjourned further proceedings in the trial to a Special Term thereafter to be held in the county of W., at which further testimony was taken, and judgment given, but, on the contrary, this was additional error, as the court had no authority, without their consent, to require parties to go, with their witnesses, from county to county. Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon the decision of the court at Special Term. The nature of the action, and the facts pertinent to the Questions discussed, appear in the opinion. Joseph D. Fay for the appellant. The issue of fact in this action should have been tried in the county where the subject thereof was situated. (Code, § 123; Ward v. Davis, 6 How. Pr., 274; Brush v. Mullany, 12 Abb. Pr., 344; Miller v. Hull, 3 How. Pr., 325; 1 Wait’s Pr., 181, 182, and cases cited.) P. L. McClellan for the respondent. [MAJORITY — Grover, J.] Grover, J. This was an action for the foreclosure of a mortgage, upon real estate situate in the county of Westchester. An issue of fact was joined by the complaint and answer. This, unless the cause was referred for trial, was triable at a Special Term in the county of Westchester, only. (Code, § 323.) The judge holding the Special Term in Westchester county, at which this case was upon the'calendar for trial, adjourned the same to his chambers in Brooklyn, in the county of Kings. At such adjourned term the plaintiff moved the case for trial in Brooklyn. The counsel for the defendant objected thereto, on the ground that the case could only be tried in the county of Westchester. The judge overruled the objection, and proceeded to the trial, to which the counsel for the defendant excepted. The counsel for the plaintiff insists that this was authorized by the amendment to section 24 of the Code, providing that Special Terms may be adjourned to be held at a future day at the chambers of any justice of said court residing within the district, by an entry in the same manner, and then adjourned from time to time, as the justice holding the same shall order and direct. This position cannot be sustained. It was not the intention of the amendment to transfer the trial of local cases to other, and perhaps distant, counties to which the term might be adjourned, but to facilitate the transaction of such business as might have been done in the county to which the term was adjourned, at a term originally appointed to be held "there. The counsel for the plaintiff further insists that the error was obviated, for the reason that the judge, after partly trying the ease in Brooklyn, by taking a part of the testimony, adjourned the further proceedings in the trial to a Special Term, thereafter to be held in the county of Westchester, at which further testimony was taken, and the judgment given. This, so far from obviating the error, unless consented to, was an additional error. The court has no more authority to require parties, without their consent, to go, with their witnesses, from county to county, partially trying the case in each, in cases triable by the court without jury, than it has, in cases triable by jury, to - require the jurors to attend out of their county. The judgment must be reversed, and a new trial ordered, upon this ground. An examination of the questions made upon the merits is omitted, for the reason that it clearly appears that the facts from which they arise may be varied upon a retrial. • All concur. Judgment reversed.