Thompson v. Thompson — 4 N.Y.S. 842

Majority

p. 842

Thompson et al. v. Thompson et al.

(Supreme Court, General Term, First Department.

March 29, 1889.)

Headnote

Practice in Civil Cases—Motions—Where Made.

An application to set aside a judgment, and amend áL order directing exceptions to be heard in the first instance at general term, is a motion,,and being required by Code Civil Proc. N. Y. § 1000, to be made on notice, is within section 769, providing that a motion on notice, in an action in the supreme court triable, in the First district, must be made in that district.

Appeal from special term, Erie county.

Action by Jennie M. Thompson and John C. Thompson, executors of John B. Thompson, against Charles R. Thompson, Patrick H. Kennedy, and E. W. Kingsland, to recover $5,000 loaned to defendants by William D. Thompson, deceased, who bequeathed it to plaintiff’s testator as his residuary legatee. Trial was had at circuit before Mr. Justice Childs and a jury. A verdict was directed for plaintiffs, and the exceptions were ordered to be heard in the first instance at general term. Through a misapprehension, judgment was entered on the verdict, and defendants made a motion at the Erie special term, before the trial justice, to set aside the judgment and amend the order. The motion was granted, and plaintiffs appeal.

Argued before Van Brunt, P. J., and Bartlett, J.

Lewis Sanders, for appellants. Fugetie H. Pomeroy, for respondents.

This action had been tried by Mr. Justice Childs and a jury at a circuit court held in the county of Yew York. An order was mane

p. 843

directing the exceptions to be heard in the first instance at the general term, but no provision was made in said order for suspending the entry of judgment. The plaintiffs thereupon entered judgment, and this motion was made upon notice that it would be brought on before Mr. Justice Childs at his chambers, in the court-house in the city of Buffalo, on the 31st of January, 1889, at 10 o’clock on that day. Upon the coming on of the motion it was preliminarily objected by the counsel for the plaintiffs that the motion should be made in the county of New York, and could not be made in the county of Erie, which objection was overruled, and the motion granted; and an order was entered vacating and setting aside the judgment entered, and amending the record of the clerk of the court, by adding at the end thereof the words, “and judgment in the mean time suspended.” From this order the appeal is taken.

By section 1000 of the Code it is clear that the judge who tried the cause had the power at any time before the hearing of the exceptions to modify or revoke the order directing the exceptions to be heard in the first instance at the general term, upon notice, in court or out of court. But it is equally clear that section 769 required that such motion should be made in the county of New York. The provisions of this section are that a 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 the county adjoining that in which it is triable, except that where it is triable in the First district the motion must be made in that district. The application to set aside this judgment, and amend the order directing the exceptions to be heard in the first instance at the general term, was clearly a motion, as by section 768 a “motion” is defined to be an application for an order. The requirements of section 1000 are that such applications shall be made upon notice, and the provisions of section 769 are that motions upon notice in actions triable in the First judicial district must be made in that district. It seems clear, therefore, that Mr. Justice Childs had no power to entertain this motion outside of the county of New York.

The claim upon the part of the respondents that, because the motion came up for hearing before Mr. Justice Childs, therefore, in effect, the motion was made here, and it would be ridiculous to ask him to come to New York to hear the motion, does not meet the provisions of the Code. They are explicit, reasonably clear, and cannot be repealed by judicial legislation. It may be inconvenient, but inconvenience cannot establish rules of practice inconsistent with express legislation. In making the disposition of the appeal that we do we in no manner express any opinion as to the propriety of Mr. Justice Childs’ order. That question is not before us, the only question being as to his power to entertain this motion in Buffalo. The order should be reversed, with $10 costs and disbursements, the order to recite that the same is not reversed upon the merits.