Whereas corporations generally may have but one residence in a state, railroads may have many. It has been held that a railroad is a resident of every county "where it operates," "where it has a place of business," "where it runs," "where it owns property and runs its road," "through which its line passes". Poland v. United Traction Co., 88 App. Div. 281, 85 N YS. 7, affirmed 177 N.Y. 557, 69 N.E. 1129; Polley v. Lehigh Valley R. 138 App. Div. 636, 122 N.Y.S. 708, affirmed 200 N.Y. 585, 94 N.E. 1098; Levey v. Payne, 200 App. Div. 30, 192 N.Y.S. 346; East Tennessee, V. G.R. Co. v. Atlanta R., 5 Cir., 49 F. 608; 37 Words and Phrases, Perm.Ed., p. 273. For purposes of venue, therefore, the residence of a railroad does not rest only upon the presence of tracks.
The action is to recover for personal injuries and property damage resulting from an accident which occurred in the borough of Queens, when an automobile owned and operated by the plaintiff Charles C. Reed collided with the automobile of the defendant. It is not controverted that on January 10, 1940, when the action was commenced by the service of the summons, the plaintiff Charles C. Reed was a resident of the State of Ohio and that the defendant was a resident of Watertown, Jefferson county, N.Y. It does not clearly appear whether Leah Reed and Charles Reed, Jr., for whom the action is maintained by Charles C. Reed as guardian, resided in the State of Ohio or in the county of Queens. It is, however, immaterial in which of these two places they resided for, the action having been instituted in New York county, where none of the parties resided, the defendant's motion for a change of venue to the county of the defendant's residence should have been granted ( Levey v. Payne, 200 App. Div. 30; Ferrin v. Huxley, 94 id. 211), unless the cross-motion made by the plaintiffs to change the venue to Queens county on account of the convenience of witnesses could properly be considered by the Special Term. We think the cross-motion could not be entertained in New York county. Since the action should not have been instituted in New York county, it should have been removed to Jefferson county where all incidental motions relating to the action, including any motion for a change of venue to Queens county, should be made and decided. If circumstances exist which render more convenient a trial in Queens county, it is for the Supreme Court in Jefferson county, where the action properly belongs, to so declare.
In the circumstances the court had no power, of its own motion, to change the venue to Queens county, where neither party resides. ( Levey v. Payne, 200 App. Div. 30.) An analysis of the proof to be offered in this case, read with the concessions made by plaintiff, narrows the issue materially, and requires a denial of the motion to change the place of trial upon the ground of convenience of witnesses. Kelly, P.J., Young, Kapper Lazansky and Hagarty, JJ., concur.
Present — Clarke, P.J., Dowling, Smith, Page and Greenbaum, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, on the authority of Levey v. Payne ( 200 App. Div. 30).
The holding also finds support in the wellbuttressed decisions holding that a railroad corporation, for such purposes, is deemed to have a residence in each county in which is located a part of its railroad lines. ( Poland v. United Traction Co., 88 App. Div. 281, affd. 177 N.Y. 557; General Baking Co. v. Daniell, 181 App. Div. 501; Levey v. Payne, 200 App. Div. 30.) Motion denied.