Chamberlain v. Dumville — 50 N.Y. St. Rep. 356

Majority

p. 356

John D. Chamberlain, Resp't, v. Joseph Dumville et al., App'lts.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

Motions and orders—Renewal or motion.

It is contrary to the practice for one judge to entertain a motion once already made and denied by another judge, unless leave to renew has been obtained from the same judge, if practicable, by whom the motion was formerly denied.

Appeal by the defendants from an order made and entered at the Niagara circuit granting a compulsory reference.

J. E. & C. W. Pound, for app’lts;

Sullivan, Morris & Jerome (B. Crowley and A. E. Gardner, of counsel), for resp’t

This order should be reversed, if for no other reason, because it was made by one judge at the circuit after it had been denied by another judge at special term, and without leave obtained to renew the motion.

This objection might possibly be obviated if the case had been, as stated in the printed points of counsel, one where the judge at the circuit had ordered the reference on his own motion, on

p. 357

discovering in the course of the trial sufficient ground therefor. But such was not the case, as is shown by the terms of the order itself.

It was an order made on the application of the defendants, opposed by the plaintiff. By the former order the same application of the same parties, and similarly opposed, was denied at a court held by another justice.

It is not seemly, and it is contrary to the practice, for one judge to entertain a motion once already made and denied by another judge, unless leave to renew has been obtained from the same judge, if practicable, by whom the motion was formerly denied. Klump v. Gardner, 9 St. Rep., 355 ; Worman v. Frankish, 32 id., 235; Talcott v. Burnstine, 13 id., 552.

The order should be reversed, with costs.

Macomber and Lewis, JJ., concur.