Dupignac v. Van Buskirk — 7 N.Y. St. Rep. 401

Majority

p. 401

Bezateel H. Dupignac, Resp’t, v. George W. Van Buskirk, as Ex’r, etc., App’lt.

(Supreme Court, General Term, First Department,

Filed March 31, 1887.)

Headnote

1. Motions and orders in actions triable in first district cannot . BE MADE ELSEWHERE—CODE ClV. PRO., § 769.

By Code Civil Procedure, section 769, the making of a motion in an action triable in the first district, in any other district is prohibited.

2. Same—Violation of rule.

There being two actions pending, one in the first district and the other in Kings county: Held, that an order made in Kings county consolidating the action was contrary to the prohibition of the statute.

Appeal from injunction order made and entered on the 10th of February 1887.

Anthony R. Dyett, of counsel for def’t and app’lt; Louis C. Wachner, of counsel, for pl’ff and resp’t.

This action was pending in the county of New York. Another action was pending between this plaintiff and these defendants and others in the county of Kings. A motion was made in the action in the county of Kings to cansolidate the two actions and to direct that the trial should be had in the county of Kings, which motion was heard in the county of Kings and granted. At that time a motion for an injunction was pending in this court which was heard notwithstanding the order which had been made in the action in Brooklyn, and from the order then made, this appeal is taken. As has been said by Mr. Justice Lawrence in his opinion in respect to the validity of the order made in Kings county removing this case to that county, and consolidating it with the action pending in Kings, section 769 of the Code prohibits the making of' any motion in an action triable in the first district in any other district. Therefore the learned justice in the motion in Kings county, was entirely without jurisidiction as far as this section is concerned, and the order made therein was void. If it claimed that the court had jurisdiction to-hear the motion in the action pending in Kings county, it is clear that in that action the court had no power to make an order affecting the rights of the parties in the action pending in this county. Orders can only be made which affect the substantial rights of a party to an action, in the action itself, and, therefore, if these actions were to be consolidated, the motions must be made in both actions.

It is urged that if this rule applies then merely because the venue is laid in different counties, no motion for a consolidation can possibly be made although it may be entirely proper that a consolidation of the action should take place. It is sufficient to say in answer to this suggestion that if it was proper that the actions should be consolidated, it would certainly be proper that they should be tried in the same county; and upon a motion having been made to change the venue, if it was proper that the actions should be consolidated, the venue of one of them should be changed to the county in which the other was pending, in order that such motion for consolidation might be heard. Certainly as far as the action pending in the county of New York was concerned, no motion could be heard affecting such action outside of the county unless the express prohibition of the Code is violated.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.