Sterling Homes Co. v. Stamford Water Co., 17.

• Decision Date: 12 November 1935
• Docket Number: No. 17.,17.
• Citation: 79 F.2d 607
• Parties: STERLING HOMES CO., Inc., v. STAMFORD WATER CO.
• Court: U.S. Court of Appeals — Second Circuit

79 F.2d 607 (1935)

STERLING HOMES CO., Inc., v. STAMFORD WATER CO.

No. 17.

Circuit Court of Appeals, Second Circuit.

November 12, 1935.

Ransom H. Gillett, of Albany, N. Y., for appellant.

Morris Orenstein, of New York City, for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

The plaintiff, Sterling Homes Company, Inc., is a New York corporation which in 1926 was engaged in a real estate development of land situated in Connecticut. Desiring to obtain water service for prospective purchasers of its lots, it entered into a contract with the defendant, a private corporation of Connecticut, by which it was agreed between the parties that some 3,925 feet of water main should be laid on certain streets within the subdivision at the plaintiff's expense, and that, when the water rates derived by the defendant "from the takers of water from said main" should amount for three consecutive years to 10 per cent. annually upon the cost of said main, the defendant would repay such cost to the plaintiff. The cost was $10,066.78. Alleging that the condition which entitled it to repayment of this sum had been performed, the plaintiff brought this action. After the defendant had answered, a motion was made for summary judgment under section 476 of the New York Civil Practice Act and Rules 113 and 114 of the Rules of Civil Practice. The motion was granted, and this is an appeal by the defendant from the judgment entered for the plaintiff in the sum of $10,066.78, with interest from December 1, 1932.

Before passing to the merits of the dispute, a question of venue must be considered. The plaintiff brought its action in the District Court for the Northern District of New York, alleging that its principal office is located in the city of Albany, which is within that district. By its answer the defendant challenged the venue of the action, asserting that neither the plaintiff nor the defendant is an inhabitant or resident of the Northern district. It alleged that the plaintiff's principal office is and always has been within the Southern district of New York, and that its attempt to change the location of its principal office to Albany by a certificate filed with the secretary of state of New York on September 1, 1934, was solely for the purpose of bringing this action and was ineffectual; that the action should have been brought in the Southern district of New York or in the district of Connecticut. The defendant contends that it was entitled to a trial of the issue thus raised by its answer. But the questions attempted to be presented relate only to venue, not to jurisdiction. When a case is within the general jurisdiction of the court by virtue of diverse citizenship, a defect in venue will be waived if the defendant enters a general appearance. Lee v. Chesapeake & Ohio R. Co., 260 U. S. 653, 655, 43 S. Ct. 230, 67 L. Ed. 443. Such a waiver occurred in the present case. On September 20, 1934, the defendant served a general notice of appearance. That on the same day it obtained from the plaintiff a stipulation extending the time "to answer or otherwise move with respect to the complaint" in no wise detracts from the effect of its general appearance. Its privilege of attacking the venue of the action was thereby waived.

The merits of the dispute involve an interpretation of the contract sued on and require a further statement of the admitted facts. The water main laid pursuant to the contract (for convenience...