Kennedy v. Simmons — 8 N.Y. Sup. Ct. 603

Majority

p. 603

DENNIS KENNEDY and others, Appellants, v. WILLIAM M. SIMMONS, Respondent.

Headnote

County judge —power of, to grant order of arrest.

An order of arrest may be granted by a county judge, though the action in which it is granted is not triable in his county, and though the attorney for the moving party does not reside therein.

Appeal from an order made at a Special Term held in Onondaga county, setting aside an order of arrest made by the eonnty judge of Cortland county. The facts are stated in the opinion.

Fuller dk Vann, for the appellants.

Benton ds Chanvplin, for the respondent.

It appears from a stipulation made by the attorneys for the purpose of this appeal, and from the opinion of the learned judge at Special Term, that the order of arrest was set aside upon the sole ground that the place of trial of said action being in the county of Onondaga, and the plaintiffs’ attorney also residing in that county, the county judge of the county of Cortland had no jurisdiction or authority to grant such order of arrest, conceding that such order was made upon affidavits duly presented to such judge, containing sufficient grounds therefor, upon the merits.

The order at Special • Term was doubtless based upon the construction of subdivision number 3, of section 401, of the Code, which provides that “ orders made out of court, without notice, may be made by any judge of the court, in any part of the State, and they may also be made by a judge of the county where the action

p. 604

is triable, or by the county judge of the county in which the attorney for the moving party resides.”

This provision, we think, is an enlargement of the powers of the county judge, and applies to the general and ordinary class of orders made in the progress of a cause, and was not intended to qualify or restrict the express powers conferred upon county judges in respect to provisional remedies.

The power to grant injunctions, orders of arrest and attachments, is conferred upon the county judges in as clear and explicit language as upon the judges of this court, and is equally unqualified, in sections 218, 220, 223 and 225, in respect to injunctions, and 228, in respect to attachments, and 180, in respect to orders of arrest.

This construction of the powers conferred upon the county judges, in respect'to provisional remedies, was in principle asserted and adopted by the Commissioners of Appeals, in the case of Webb v. Bailey, reported in the abstract of the decisions of that court, published in the Albany Law Journal, vol. 9, No. 17, at page 276, of the date of April 25, 1874. That was a case where, under like circumstances as in this case, an attachment was granted by the county judge of Chautauqua, in an action where the venue was in Cattaraugus, and the plaintiffs’ attorney also resided in the last mentioned county. It was expressly held in that case, that the powers given to a county judge, to issue writs of attachment in actions in this court, by section 228, of the Code, are not restricted to cases to be tried in his county.

That case we consider decisive of the question presented upon this appeal, and the order of the Special Term must therefore be reversed.

Order reversed.