Thompson v. Thompson — 22 N.Y. St. Rep. 471

Majority

p. 471

Jennie M. Thompson et al., Resp’ts, v. Charles R. Thompson, Impleaded, etc., App’lt.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

Practice—Motion—Where to be heard—Code Civ. Pro., § 769.

Where in an action tried in New York county, an order was made directing the exceptions to be heard in the first instance at the general term, but no provision was made in the order for suspending the entry of judgment, the plaintiff thereupon entered judgment and the defendant moved to set the judgment aside and amend the order. The motion was made upon notice that it would be brought on before the justice who tried the action, in the city of Buffalo, Erie county: Held, that the motion should have been made in New York county.

Appeal from order made by Mr. Justice Childs, at the Erie special term, in an action tried and triable in New York county, which overruled plaintiff’s preliminary ob: jection that the motion should be made in New York county.

Lewis Sanders, for app’lt; E. H. Pomeroy, for resp’ts.

—This action had been tried by Mr. Justice Childs and a jury at a circuit court held in the county of New York. An order was made 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 plaintiff 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 ten o’clock on that day;

Upon the coming on of the motion, it was preliminarily objected by the - counsel for the plaintiff 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 meantime suspended.” From this order the appeal is taken.

p. 472

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 respondent, 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 at Buffalo.

The order should be reversed, with ten dollars costs and disbursements, the order to recite that the same is not reversed upon the merits.

Bartlett, J., concurs.