Dupignac v. Van Buskirk — 18 Abb. N. Cas. 204

Majority

p. 204

DUPIGNAC v. VAN BUSKIRK.

N. Y. Supreme Court, First District, Chambers;

January, 1887.

Headnote

Consolidation of actions triable in different counties.] A party cannot change the place of trial of any action triable in New York county by procuring an order in an action triable in Kings county consolidating the two actions. Before moving to consolidate, he should move in New York county for an order changing the place of trial to Kings county.

Motion for an injunction pendente lite.

Bezaleel H. Dupignac sued George W. Van Buskirk, as executor of Catherine Ann Dupignac, deceased, and another, a legatee under the will, brought this action to recover possession and establish title of certain bonds and mortgages standing in the name of the deceased to which plaintiff claimed title, and which he claimed were held in trust for him by the deceased.

Upon the return of an order to show cause why an injunction pend&nie Hie should not be issued restraining the executor from collecting or receiving payment of any of the bonds and mortgages in question or of the interest thereon, and for a receiver, it was objected that the action had been consolidated with an action pending between the same parties in Kings county.

The action at bar was triable in New York county, the first judicial district.

WilUam L. Clark for the plaintiff.

Edward H. Strickland for the defendants.

This action, which it is claimed by the defendants’ counsel was consolidated with the action between the same parties pending in Kings county, was triable only in the first judicial district.

Section 769 of the Code of Civil Procedure provides that a

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motion upon notice in an action in the Supreme Court must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable, except that where it is triable in the first judicial district the motion must be made in that district. Such being the provision of the Code, it is difficult to see how a party can change the place of trial of an action,, in which the venue is laid in this county, by making a motion in Kings county to consolidate the action here with the action pending there.

Before moving to consolidate the actions, if the defendants desired to comply with the law, they should have moved in this county for a change of the place of trial of this action. Not having done so, the case is still here, and I shall proceed to hear the motion upon the order to show cause, granted by Justice Barrett on the 27th of December last; and the motion will be restored to the day calendar of the chambers of this court for that purpose.