Adams v. Sage , 1856 N.Y. Misc. LEXIS 11 ( 1856 )

E. Darwin Smith, Justice.

The first ground of objection to the granting of this order, made by plaintiffs’ counsel, is. that according to subdivision 3, of § 401, this being an action pending in the first judicial district, the motion cannot be made elsewhere, and that therefore I have no jurisdiction.

Subdivision 1, of § 401, is, “ an application for an order is a - motion.”

Subdivision 3 is, “ motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that where the action is triable in the first judicial district, the motion must be made therein.”

I am inclined to think that this section does not apply to chamber orders; but that under § 405, giving general powers to “ a judge of the court ” to enlarge time, &c., any judge in any part of the state may make such an order, notwithstanding subdivision 3 of § 401. That section should be construed as to chamber business, beneficially for the profession, and so as to promote their convenience in practice.

2. The more serious objection to granting this application, is contained in the plaintiffs’ second ground of objection, which is, that no appeal is pending.

It is claimed that in equity causes, pending at the time the Code took effect, there is no such thing as an appeal to the general term: that the only mode of review is by notice of rehearing., accompanied by security, and that this notice must be served and security given within ten days after notice of the judgment or decree. (See Chap. 11, § 7, of Supplemental Act "of Provisions Relating to Existing Suits.”) And this position is supported by reference to § 323 of the Code; and to sub. 3 of § 2 of chapter 1 of supplemental act, by which it appears that § 348, providing for appeals to general term, is not applied to existing suits; and that § 323 (which, in connection with the latter part of subdivision 3 of § 2 of chapter 1 of supplemental act, shows that it includes decrees in equity,) is applied to existing suits.

I am strongly inclined to the opinion, that the plaintiffs are right in their construction of the statute, and that there is no appeal pending, and that defendants’ proceedings for that purpose are not effectual. (3 How. Pr. R. 254, 271, 422.)

But, inasmuch as a mere order enlarging time to make case will not affect the question-one way or the other, or prejudice the plaintiffs, I am disposed to grant it, without prejudice to their right to move to dismiss the appeal, and without staying the plaintiffs in the collection of their judgment.