Fisk v. Albany & Susquehanna Railroad , 41 How. Pr. 365 ( 1870 )

Learned, J.

The order of special term granted on the 15th'of December, changed the place of trial to Rensselaer al; once. The transfer of the papers is a subsequent clerical duty. But the place of trial is none the less changed, although the clerk, should neglect his duty. It is often the case, that no papers are on file. But that fact would not prevent the place of trial, or the cause from being changed from one county to another.

Under the former practice, the court could change the issue. And yet, the papers in the cause remained in that one of the four clerk’s offices in which they had been filed. There can be no doubt, therefore, that from the granting of the order, the place of trial has been and is Rensselaer county. This change is not affected by the stay of proceedings, or by the appeal. If the general term should hold the order to be appealable, and should reverse it, then the place of trial would be changed back to New York. But in the meantime, it is in Rensselaer; and there is where the papers should be. The county clerk, therefore, should not be forbidden to transfer them where they belong.

If the stay of proceedings prevented the clerk from transferring the papers, then it was unnecssary to insert that additional clause forbidding the transfer. If it did not, then the clause should not have been inserted. For a stay of proceedings is all that is authorized on such an appeal. (Sec. 350).

I see no reason why there should be a stay of proceedings. It is very doubtful whether the order is appealable. The change of trial is for the convenience of witnesses, and I do not think, that an order which is granted for their convenience can be said to aiíect a “ substantial right.”

It is a matter of convenience / and that too, not the convenience of the parties, but of witnesses. So far as I know, such an order has never been held to be appealable. Houck agt. Lasher, (17 How., 520,) was a case where the county designated was claimed not to be the proper county under section 125, and presented a different question. There is a plain omission of the word ‘/not” on page 523 of Judge Harris’s opinion, so that his remark, (which may be obiter,) is to the effect that a change of' the place of trial on the ground of the convenience of witnesses is not appealable.

The defendant ought to be at liberty to go on with the action; to notice the appeal for argument; to notice the case for trial, and to try it.

As to the -chamber order granted December 20, returnable the 27 th, I-think it irregular. No motion can be heard in the first district, since the place of trial has-been changed to Rensselaer. (Sec. 401, sub. 4).

If'that order is put on the ground that, it is only for the purpose of a resettling of the order granted by the special term held by Judge Brady, then it is more than irregular. The settling of an order is merely the putting a judge’s decision into formal language. When a judge has thus expressed in formal language what is the decision of the court held by him; no court has any right to alter it. An appellate court may reverse it. But it is preposterous to claim that the judge does not know how to express his own decision, and that some other court must correct his statement of what he decided. The evils of such a practice as is, here attempted, are too plain to need comment. And in this case, there is nothing to correct. The defendants made out such a case as satisfied the court, that the place of trial should be changed for the. convenience of witnesses. The court gave the plaintiffs the privilege of having it changed to Bensselaer, rather than Albany, if he so elected. His counsel drew an order changing it to Bensselaer; which was a plain, common sense expression of such election. On a subsequent day, according to the affidavits used by him, his counsel expressed a bare preference, or in other words, “he was willing to signify his preference to Bensselaer, over Albany.

And it appears to me, that with great propriety,-Judge Beady, thereupon stated, that the plaintiff's counsel had. elected that the change should be to Bensselaer.

It is difficult to see what else he could have stated. And,, at any rate, no other court is competent só correct the order which he has thus settled, and settled on a hearing of both parties.

A part of the relief asked for on the second motion is a stay of any proceedings by the plaintiff in the first judicial district. I do not think, this would be proper. If I am correct in my views, that the place of trial is changed to Bensselaer, then I must assume that the courts of that district will not act where they have no jurisdiction. If they differ from me," and hold that the place of trial is still in New York, and that they have jurisdiction ; the decision on the two conflicting views will have to be made by a higher tribunal.

An order must be entered, setting aside and vacating the order made by special term, before Mr. Justice Babnaed, December 20, staying proceedings, with $10 costs motion; and also an order must be entered setting aside the chamber's order made by Mr. Justice Babnaed the same day, requiring the defendants to show cause, &c., and the stay, meantime, with $10 costs motion.

And these orders will be entered in Bensselaer.