F.H.S. Operating v. Natl. Fire Ins. Co., Hartford

Full title: F.H.S. OPERATING CO., INC., Respondent, v. NATIONAL FIRE INSURANCE COMPANY…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 17, 1955

286 App. Div. 1026 (N.Y. App. Div. 1955)

Opinion

October 17, 1955.

Plaintiff, a resident of Queens County, brought this action in Nassau County, to recover upon insurance policies, issued by defendants, none of which is or has been a resident of Nassau County. Defendants did not move for a change of venue. Plaintiff claimed a preference under rule 6 of the Nassau County Supreme Court Rules on the ground that the causes of action alleged in the complaint are of a commercial nature. Defendants appeal from an order on reargument insofar as it adheres to the original determination denying defendants' motion to retain the action on the regular calendar. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. No opinion.

Nolan, P.J., MacCrate and Beldock, JJ., concur; Murphy and Ughetta, JJ., dissent and vote to modify the order by striking therefrom the second ordering paragraph and by substituting a provision granting defendants' motion, with the following memorandum:

Rule 6 of the Nassau County Supreme Court Rules conditions granting of a preference on proper venue. None of the parties is a resident of that county and, therefore, venue was not properly laid therein. The mere failure of defendants to move for change of venue does not constitute a compliance with the condition in the rule. The denial of defendants' motion enables nonresidents not properly on the calendar to procure a preference over residents of the county.