Wright v. Bowne — 86 N.Y. Sup. Ct. 385

Majority

p. 385

David F. Wright, Appellant, v. Robert Bowne, Respondent.

Headnote

Irregular notice of motion — when it does not deprive the court of jurisdiction.

file fact that a motion was noticed for argument at Schenectady and the order therein purported to he made at Brooklyn, does not deprive the court of jurisdiction although the notice of motion was irregular.

Appeal by the plaintiff, David F. Wright, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of April, 1894, modifying an order made at the Kings County Special Term on the 21st day of October, 1893, granting the plaintiff’s

p. 386

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 therefrom the words “ The plaintiff to have $10, costs of tliis motion to abide the event of the action,” and vacating an order 'made at the Kings County Special Term on the 27th day of October, 1893, denying the defendant’s motion to resettle the order made the 21st day of October, 1893.

A motion was noticed “ before the Hon. J. S. LaNDON at his Chambers, in the city of Schenectady, New York, on the 30th day of March, 1891, at 10 o’clock in the forenoon, or as soon thereafter .as counsel can be heard.”

The order granted upon such motion was headed as follows: '“At a Special Term of the Supreme Court of the State of New York, for the county of Kings, at Chambers thereof, the 30th day of March, 1891.

■“Present — Hon. JunsoN S. LaNDON, Justice.”

Henry L. Brcmt, for the appellant.

Charles Sfrauss, for the respondent.

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 .had 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.

BkowN, P. J., and Culluk, J., concurred.

Order affirmed, with costs.