Leland v. Hathorne

Decided June 15, 1870

New York Court of Appeals · decided 1870-06-15

Hathorne. The object of the action was to enjoin the defendant from building a bridge which plaintiff claimed would be a public nuisance and injurious to plaintiff’s real property. The property, and the site of the proposed bridge, were in the county of Saratoga. The place of trial of the action, specified in the plaintiff’s complaint, was the county of Westchester.

Decided 1870-06-15

By the Court,

¶1The order was held to be appeal-able under subdivision 4 of section 11, and the cause of action was held to be local, and one that must be tried in the county where the premises are situated.

¶2The only opinions read were those of two members of the .court who dissented, being of opinion that the action was not local.

¶3Sutherland, Hunt, Foster, Ingalls and Smith, ' JJ., concurred in the opinion that the order was appealable.

¶4Hunt, Grover, Foster, Smith and Sutherland, JJ., concurred in the opinion that the cause of action was an apprehended injury to real property within subdivision 1 of section 123 of the Code.

¶5Order reversed, with costs, arid motion granted to •change the place of trial to Saratoga county.