Hull v. Hart — 34 N.Y. Sup. Ct. 21

Majority

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JOSEPHINE HULL, Respondent, v. JEREMIAH S. HART, Appellant.

Headnote

Action in the first judicial district — the proceedings in it may he staid, pending appeal, by a judge in any part of the State.

A judge out of court in any part of the State may make an order staying all proceedings in an action brought in the first judicial district, during the pend ency of an appeal taken from an order there made denying a motion to change the place of trial.

Appeal from an order of the Special Term vacating an order (made by a justice of the Supreme Court in Saratoga county) staying the plaintiffs proceedings in this action during the pendency of an appeal from an order made in the first judicial district denying a motion for a change of venue.

A. 8. Bwrdiehfor the appellant.

A. II. Reamey, for the respondent.

In this case the defendant moved to change the place of trial from the city and county of New York to the county of Saratoga. This motion was made at the Special Term, and denied. From the order denying the same the defendant took an appeal to the General Term, and obtained from a justice of the court residing in Saratoga an order staying proceedings pending the appeal. On motion, at the Special Term in this district, that order was vacated on the ground, apparently, that the justice residing in Saratoga had not power to grant the same.

We think the decision was erroneous. By section 1351 of the Code, a judge of this court anywhere in the State may make an order staying proceedings under the judgment or order appealed from; and by section 775 of the Code, a judge out of court may make an order staying proceedings, for a longer time than twenty days, under the order or judgment appealed from ; and by section 112, it is provided that where an order may be made by a judge of the court, out of court and without notice, and a particular judge is

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not particularly designated by law, it may be made by any judge of tbe court in any part of the State.

The provisions of section 769, which requires that motions in actions triable in the first district shall be made in that district, only apply to motions made upon notice. The order of stay made by the justice at Saratoga was an exporte one, and, as. we understand the Code, within his power to make. It should not, therefore, have been set aside on the ground of want of power.

The order should be reversed, with ten dollars costs and disbursements.

Present — I)avis, P. J., Brady and Ingalls, J J.

Order vacating stay reversed, with ten dollars costs and disbursements.