#### SHERMAN v. ADIRONDACK RY. CO. et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Change of V ende—Counter Motion—Notice.

In an action against the state forest commission and a railroad company to annul a grant of land to the company by the commission, on the-ground that the grant was not made at a lawful meeting of the commission, where a majority of the commission, whose answer set up the-legality of the meeting, join with the company, which set up the same defense, in a motion for change of .venue to the county in which the land is situated, and the minority, whose answer denied the legality of the meeting, move to change the venue to the county where the meeting was held, the respective moving parties are required to give notice of motion to their codefendants seeking a different venue.

Appeal from special term, Onondaga county.

Action by George C. Sherman against the Adirondack Railway Company and others to annul a grant of land. From an order denying a motion for a change of venue, some of the defendants appeal.

Reversed.

*693The action was commenced on the 31st of December, 1894. The place of trial named was Jefferson county. The two corporations and Young appeared by an attorney residing in Albany, who served an answer; the defendants Tilden, Schuyler, and Weed, constituting a majority of the. forest commission, appeared by an attorney residing in Saratoga; Nathan Strauss appeared separately by an attorney residing in Watertown; and Francis G. Babcock appeared separately by an attorney residing in Hornellsville. The corporations and a majority of the forest commission moved to change the place of the trial of the action from Jefferson to Essex county, “on the ground that the latter was the proper county, because the action affected an interest in real estate situated in the county of Essex.” The motion came on to be argued at Syracuse, at April special term, and was denied, and the moving defendants appeal from that order. At the time of serving an answer a demand in writing for a change of the place of tidal from the county of Jefferson to the county of Essex was served, and after the lapse of more than five days, no consent having been given, the motion was made. The defendants representing a majority of the forest commission served their answer, in which they assert the legality and propriety of the proceedings granting a right of way to the defendant corporations, and with their answer served on the attorneys for the plaintiff a demand in writing for the change of the place of trial from Jefferson to Essex county, on thé ground that the latter is the proper county for the trial; and thereafter they gave notice of motion, which came on to be heard at the Onondaga county special term, which was denied. The minority defendants gave notice of motion to change to Albany county.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Lewis B. Carr, for corporate appellants and Horace G. Young.

Edgar T. Brackett, for majority of the forest commission

James A. Ward, for appellant Nathan Strauss.

Mullin, Griffin & Walker, for respondent.

HARDIN, P. J.

Plaintiff in his complaint alleges that he is “interested in the lands constituting what is known as the ‘Forest Preserve’ and the ‘Adirondack Park,’ situated in the counties of Essex, Herkimer, Hamilton, Franklin, and Lewis, * * * and has a special interest in lands which are embraced within the boundaries established by the forest commission as the boundaries of the Adirondack park.” He also alleges the appointment of Strauss, Babcock, Tilden, Schuyler, and Weed as commissioners under chapter 332 of the Laws of 1893. The complaint also alleges that the Adirondack Railway Company, by Young, its vice president, presented to the defendants Weed, Schuyler, and Tilden, who assumed to act as commissioners, a petition, which is set out in the papers, and that the commissioners assumed to act, and placed upon the records of the commission a resolution at the office of the commission on December 27, 1894, and that the resolution remains on the minutes of the commission. The complaint also alleges that when Weed, Schuyler, and Tilden assumed to meet as such commission, “no lawful meeting of said commission had been called or authorized.” The complaint also alleges “that no sufficient legal notice was given to the defendants Babcock and Strauss of such meeting, and the other members of the commission had no lawful right or authority to meet or act in their absence, and all the acts done by said defendants at said meeting, with reference to said petition, resolution, and acceptance thereof, were without authority and void.” The complaint further alleges that “the lands described in said petition and resolution constitute *694the most valuable part of said park and preserve. * * * It is the purpose of said defendants the said railway companies and the said Young to enter upon said lands and denude them of their timber and of growing trees, and devastate said lands, and not • only destroy what may be growing thereon, but also to prevent any future growth of timber and trees thereon.” Plaintiff claims to bring this action in his own behalf, and “in behalf of all the other people of the state who are interested in the preservation of said park and preserve.” The complaint further avers that the petition, resolution, and acceptance of the defendant railway companies, “so long as they exist and remain upon the flies and records of the said forest commission, constitute a cloud upon the title of the plaintiff, and of the people of the state, to said lands, and, if not canceled, will seriously interfere with the vested rights and privileges of the plaintiff in and to said lands, and embarrass him in his enjoyment of the same, because, under color thereof, the said railway companies will seek to exclude him from the free use of said lands in the manner provided for by law.” In the prayer for relief the plaintiff demands judgment “that it be decreed that the aforesaid resolution, * * * and the acceptance thereof by the defendant railway companies, * * * and the filing and record thereof, and all entries upon the files and minutes and records of the said forest commission relating thereto, be declared null and void, and be canceled and expunged from the files and records of said forest commission, and that the defendant railway companies and the said Young be perpetually enjoined and restrained from entering on the lands described therein, or any part thereof, and from using the same for any uses and purposes of the defendant companies, and from asserting or attempting to assert any claim of possession or right of possession to said lands under or by virtue of said resolution and acceptance.”

It appears that the defendant corporations, as soon as the resolution was passed, accepted the grant of a right of way mentioned in the resolution, “subject to the terms and conditions in such grant imposed, and hereby on their part promise and agree to conform thereto and comply therewith.”

In the answer of the corporations they aver that the commission convened, pursuant to due notice of such meeting, and that the commissioners were acting in conformity with law in the discharge of their duties, and that the “forest commission had full power and authority to grant the defendant companies a right of way over said lands, for railroad purposes, on such terms and conditions as to that body might seem just.” The answer of the defendants Weed, Tilden, and Schuyler contains similar averments to the answer from which quotations have already been made, and they deny “that there was anything improper or irregular or illegal in their action; but, on the contrary, they aver that said action was strictly within their legal power, that the same was and will result in a great good to the people of the state, including this plaintiff, and will not in any degree impose any tax upon the plaintiff, nor will it result in any diminution of rainfall, or in any storage for rainfall or for the head waters of the streams of the state, different from what existed prior to said grant.” *695The defendant Babcock, in his answer, seems to question the validity of the action of the majority of the board of forest commission, and demands judgment “that the aforesaid resolution, * * * and the acceptance thereof by the defendant railway companies, * * and the said petition, the filing and record thereof, and all entries upon the files and minutes and records of the said forest commission relating thereto, be declared null and void, and be canceled and expunged from the files and records of said forest commission.” The defendant Strauss served an answer containing somewhat similar allegations, and demanding somewhat similar relief to that mentioned in the answer of the defendant Babcock.

It seems, from the complaint and answers, that the subject-matter involved is a right of way over lands situated in the county of Essex, and that the relief sought is the annulment of the grant of the right of way made by the forest commission. It is clearly averred that the action of the forest commission and of the corporate defendants creates a cloud upon the title of the state to the lands, and it is apparent that the plaintiff seeks a judgment declaring the resolution and acts void. If the petition, resolution, and proceedings under it are void on théir face, it is difficult to see how the plaintiff can sustain an action to have the same canceled as a cloud upon title. Scott v. Onderdonk, 14 N. Y. 9. In Fonda v. Sage, 48 N. Y. 179, it is said:

> “There is one rule, however, which is fully settled and now uniformly followed in this state, and that is, if the instrument claimed to constitute the cloud is void upon its face, a court of equity will not interfere to remove it, because such an instrument can work no mischief; and the same is true, although the invalidity does not appear upon the face of the instrument, if it necessarily appears in some one of the links of title which the claimant would have to establish in order to give the instrument force and effect.”

However, it is not necessary for the purposes of this appeal to determine whether the plaintiff can succeed in maintaining an action on the equity side of the court to have canceled the petition, resolution, and acceptance thereunder, referred to in the complaint, and that question will more appropriately be determined when the issues are brought to trial.

Apparently the scope of the plaintiff’s complaint brings the case within section 982 of the Code of Civil Procedure. In that section it is provided that an action “to recover, or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting any estate, right, title, lien or other interest in real property or a chattel real,” must be tried in the county in which the subject of the action or some part thereof is situated. In that aspect of the case the plaintiff seeks to remove a cloud on title, and seeks to invoke the aid of equity to guard the title to the lands mentioned in the complaint. If liberality is extended to the interpretation of the plaintiff’s complaint, it brings the conclusion that it is an equitable action brought to secure the power of the court to prevent the corporate defendants from taking possession of the lands mentioned in the resolution. It would seem, therefore, that the plaintiff’s cause of action falls within the provisions of section *696'982 of the Code of Civil Procedure. In the course of the opinion delivered in Hogg v. Mack, 53 Hun, 463, 6 N. Y. Supp. 301, which was an action to recover money, it was observed that the clause to which reference has been made refers to actions “in which the judgment which is sought is one that, by its very terms, or by reason of its form, and by virtue of the express provisions therein contained, will affect the title to real property or some interest therein.” See, also, Kearr v. Bartlett, 47 Hun, 245.

The foregoing views seem to lead to the conclusion that the corporate defendants were entitled to have the cause of action alleged against them brought to trial in the county of Essex, unless, by reason of the rights of the other defendants, the action ought to be tried in the county of Albany, where the proceedings on the part of the forest commission were had. In determining the rights of the two nonconsenting defendants, effect should be given to the fact that a majority of the commission, by the position taken upon the motion, seem to consent and request that the place of trial be had in the county of Essex. This presents an interesting question as to whether a majority of the commission can control the place of trial against a minority claiming to have some certain rights which allow them to assert that the trial should be in the county in which the .alleged official acts were performed. Apparently that question was :not so presented to the special term that it could be authoritatively ■determined. It does not appear that the respective parties moving for change from Jefferson to Essex gave notice of their motions to their codefendants; and, situated as this case was after the answers were served by the several defendants, we are of the opinion that the motion could not properly be determined when made by the corporate defendants to change the venue to Essex county without notice thereof to Babcock and Strauss; nor could the motion made by Babcock and Strauss to change the venue from Jefferson to Albany county be properly determined until notice thereof was given to the other defendants. It is apparent that the notices of motions given by Babcock and Strauss were served only on the plaintiff’s attorneys. In the absence of such notices as we have alluded to, we are of the opinion that we ought not to conclusively determine the merits of the motions until each party shall have received notice of the motions made by the several defendants. We are therefore of the opinion that both orders appealed from should be set aside, without prejudice, however, to the defendants, respectively, upon proper notice of motion, to apply to have the place of trial changed from Jefferson county.

Orders reversed, without costs to either party, and without prejudice to further applications to change the place of trial from Jefferson county, after notice shall be given of the claims of the respective parties to all persons appearing in the action. All concur.