The motion was based solely upon the ground that the county of New York was the proper county for the trial of the action, pursuant to section 984 of the Code of Civil Procedure, which provides. that such trial must be had in the county in which one of the parties resided at the time of its commencement.
The defendant’s affidavit alleges that at the time of the occurrence from which the action arose, viz., September 15, 1903, the plaintiff was a resident of Chicago, in the State of Illinois. The action wTas commenced on January 20,1904. The plaintiff in opposition to the motion submitted her affidavit, verified February 13, 1904, stating that she resides at No. 336 Gates avenue, in the borough of Brooklyn. There w¡as no evidence offered tending to show -that she resided in the county of Kings at the time of the commencement of the action, and her affidavit must be deemed insufficient for the purpose of establishing that fact. (Radney v. Hutchinson, 50 N. Y. St. Repr. 420.) The affidavit of the defendant, however, is equally and similarly defective. It is verified February 19, 1,904, and merely alleges that at that time he was a resident of the city of New York, There being no evidence before the court that either of the parties resided in the State at the time of the commencement of the action, the plaintiff might be regarded as entitled to designate any county for the purpose of the trial, under the section of the Code of Civil Procedure cited, and the order should, therefore, be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.