Hammerman v. Louis Watch Co.
| Decision Date | 30 December 1958 |
| Citation | 181 N.Y.S.2d 65,7 A.D.2d 817 |
| Parties | Benjamin HAMMERMAN, Bernard Hammerman and Hyman Hammerman, copartners, d/b/a Hammerman Bros., Plaintiffs-Respondents, v. LOUIS WATCH CO., Inc., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Morris J. Helman, New York City, for appellant.
Oppenheim & Oppenheim, Monticello, for respondents.
Before FOSTER, P. J., and BERGAN, GIBSON, HERLIHY and REYNOLDS, JJ.
Appeal from an order of the Supreme Court, Sullivan County, denying defendant's motion for leave to renew upon additional papers its motion to change the venue from Sullivan to New York County. Such a motion is properly appealable (Matter of General Assignment for Benefit of Creditors of Long Island Lacquer Co., 3 A.D.2d 666, 158 N.Y.S.2d 698).
The plaintiffs make watches under the name of Louis Pierre and the defendant under the name of Louis. The plaintiffs brought this action seeking an injunction against the defendant to prevent it from further conveying the impression that the plaintiffs were infringing on the name or any property rights of the defendant and for damages. The defendant denied same and counterclaimed for injunctive relief to restrain the plaintiffs from infringing on its registered trade-mark and for damages. The defendant demanded that the place of trial be changed to New York County and upon plaintiffs' refusal a motion was made for such relief. This motion was denied by MacAffer, J., on the basis of the insufficiency of the moving affidavit.
Pursuant to sec. 182 of the Civil Practice Act an action, with certain exceptions not applicable here, must be tried in the county where one of the parties resided at the commencement of the action. It also provides that a person having a residence in more than one county shall be deemed a resident of either. One of the grounds for the defendant's motion for a change of venue is that none of the plaintiffs are bona fide residents of Sullivan County. In the affidavit, in support of the motion, made by the defendant's president it is stated that plaintiffs all reside with their families in New York City and that the address which the plaintiffs give at Kiamesha Lake is not their true residence. Further that the plaintiffs only have a jewelry concession at a hotel at Kiamesha Lake and that they only occasionally make business visits there at which times they stay overnight. In the opposing affidavit of Benjamin Hammerman it is stated that the plaintiffs actually reside at Kiamesha Lake where they maintain a residence although it is admitted that they also have a place of business and residence outside of Sullivan County. A supporting affidavit was filed by one, Irving Cohen, stating that he let premises 'upon an all year basis to the plaintiffs who reside therein, occupy the same and actually sleep therein, in connection with the operation of their business'. Although it is true that a person may have more than one residence for venue purposes, to consider a place as such, he must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency (Hurley v. Union Trust Co. of Rochester, 244 App.Div. 590, 280 N.Y.S. 474; Bradley v. Plaisted, 277 App.Div. 620, 102 N.Y.S.2d 295). The mere assertion by plaintiffs that they reside at Kiamesha Lake where they have a place of business is not sufficient. It is apparent from the affidavits that the plaintiffs only visit Kiamesha...
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Antone v. General Motors Corp., Buick Motor Div.
...of venue under CPLR 503 are useful precedents (see, e.g., Siegfried v. Siegfried, 92 A.D.2d 916, 460 N.Y.S.2d 131; Hammerman v. Louis Watch Co., 7 A.D.2d 817, 181 N.Y.S.2d 65) because if an individual can show that he is a resident of a particular county in the State for venue purposes, he ......
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...developed over time on a case-by-case basis (see e.g. Katz v. Siroty, 62 A.D.2d 1011, 1012, 403 N.Y.S.2d 770 ; Hammerman v. Louis Watch Co., 7 A.D.2d 817, 818, 181 N.Y.S.2d 65 ).The leading Court of Appeals case on the issue of the meaning of "reside" is Yaniveth R. v. LTD Realty Co., 27 N.......
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...v. Berley, 215 A.D.2d 349 [1995] [defendant tried to establish residence through casual use of apartment for business]; Hammerman v. Louis Watch Co. ., 7 A.D.2d 817 [1958] [plaintiffs tried to assert residence through occasional use of place for business]; Rosenthal v. Brethern of Israel, 1......
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Buchheit v. United Air Lines, Inc.
...with "domicile". See Fromkin v. Loehmann's Hewlett, Inc., 16 Misc.2d 117, 184 N.Y.S.2d 63 (S.Ct. 1958); Hammerman v. Louis Watch Co., 7 A.D.2d 817, 181 N.Y.S.2d 65 (3d Dept. 1958). And the language of the statute itself clearly contemplates that a party may have more than one residence. On ......