Dupignac v. Van Buskirk , 18 Abb. N. Cas. 204 ( 1887 )

Lawrence, J.

This action, which it is claimed by the defendants’ counsel was consolidated with the action between the same parties pending in Kings county, was triable only in the first judicial district.

Section 769 of the Code of Civil Procedure provides that a motion upon notice in an action in the Supreme Court must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable, except that where it is triable in the first judicial district the motion must be made in that district. Such being the provision of the Code, it is difficult to see how a party can change the place of trial of an action,, in which the venue is laid in this county, by making a motion in Kings county to consolidate the action here with the action pending there.

Before moving to consolidate the actions, if the defendants desired to comply with the law, they should have moved in this county for a change of the place of trial of this action. Not having done so, the case is still here, and I shall proceed to hear the motion upon the order to show cause, granted by Justice Barrett on the 27th of December last; and the motion will be restored to the day calendar of the chambers of this court for that purpose.