Wright v. Bowne — 62 N.Y. St. Rep. 96

Majority

p. 96

David F. Wright, App’lt, v. Robert Bowne, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June, 1894.)

Headnote

Motions and Orders—Irregular notice.

Court is not deprived of jurisdiction by the fact that the motion is noticed for one, and the order purports to be made at another, place.

Appeal from an order, made and entered in the office of the clerk of the county of Kings, modifying an order made at the Kings County special term, granting the plaintiff’s motion for an order compelling the defendant to accept service of the plaintiff’s demurrer to a portion of the defendant’s answer, by striking there- ■

p. 97

from the words “The plaintiff to have $10, costs of this motion to abide the event of action,’’ and vacating an order, denying the defendant’s motion to resettle the order made the 21st day of October, 1898.

Henry L. Brant, for app’lt; Charles Strauss, for resp’t.

This is an appeal from an order modifying a previous order and vacating another,-both of which had been made by the same judge.

The last order seems to be just and the objection to it is technical only.

While it is true that the motion was noticed for argument at Schenectady, yet the order purports to have been made at Brooklyn.

While the notice was irregular it cannot be said that the court has no jurisdiction.

Besides the notice can scarcely be said to be a notice of motion before a court. It was a notice that an argument would be made in writing before a justice of the court to vacate one order previously made by him and modify another.

The order should be affirmed, without costs.

Brown, P. J., and Cullen, J., concur.

Order affirmed, with costs.