Canal Bank v. Harris , 10 How. Pr. 452 ( 1854 )

Mobbis, J.

In both of these cases judgments were entered in this court, in the county of Albany, in the Fourth Judicial District. Executions on each of said judgments have been issued to the city and county of New Fork, the First Judicial District, where the plaintiff resides. The defendant applies to this court to set aside the executions, for irregularity, because they were issued after the expiration of five years since the entering of judgment, without first having obtained permission of the court. The plaintiffs object to the court in this district entertaining the motion, and claim that section 401 of the Code sustains them in the objection. The words rested upon are : “ And no motion can be made in the First District in an action triable elsewhere.” The fair import of those words is, that no motion shall be made in the First District in a cause in which the venue is laid in another district. The present iu a motion in these two causes, and such motion can only be made in the causes. The title of the papers shows it is in these two causes, and the venue in each said cause is not in the First District.

Section 401 of the Code applies. This court should not entertain the motion. Motion to vacate execution to be made in the Fourth Judicial District.