Armstrong v. Loveland, 90 N.Y.S. 711

Armstrong v. Loveland

90 N.Y.S. 711 | N.Y. App. Div. | 1904

Smith, J.:

Upon the appeal from the order refusing to postpone the trial in this action this court affirmed the order upon the ground that the claimed demurrer was not authorized, as it was neither a demurrer to the reply nor to a separate traverse to or avoidance of a counterclaim contained in the reply. As it was not a demurrer authorized by section 493 of the Code of Civil Procedure, and was, therefore, improperly in the case, it raised no issue of law which must be decided before the trial of the issue of fact, and the case was properly on the calendar for trial. A further question is now raised upon this motion which presents greater difficulty. By section 238 of the Code of Civil Procedure the place appointed for the holding of Special Terms of the Supreme Court at which issues of fact are triable must be that designated by the statute for holding the County Court. By section 239 it is provided that a case triable by the court, without a jury, which is upon the calendar before the adjournment of a Special Term of the Supreme Court may, by the consent of counsel, be adjourned to a future day, and to the chambers of any justice of the court residing within the judicial district, by an entry in the minutes. The county court house in the county of Warren is situated in the village of Lake George in said county.- From this place the term of court was adjourned to the village of Glens Falls in said county. At Glens Falls no justice of the Supreme Court resided or had chambers. The adjournment, therefore, of the trial of this case from the village of Lake George to the village of Glens Falls was unauthorized by section 239 of the Code of Civil Procedure. By section 37 of said Code it is provided as follows: “ The parties to an action * * * pending in a court of record may, with the consent of the judge who is to try or hear it without a jury, stipulate in writing that it shall be tried *31or heard and determined elsewhere than at the court-house. The stipulation must specify the place of trial or hearing, and must be filed in the office of the clerk, and the trial or hearing must be brought upon the usual notice, unless otherwise provided in the stipulation.” In the absence of the stipulation provided for in this section we are unable to find any authority for the court at this adjourned term in the village of Glens Falls to try this case in the absence of defendants. At this adjourned term the defendants made default. The want of jurisdiction was not cured by their oral consent. Oral consent in open court in the village of Lake George could not take the place of the written consent required by section 37 of the Code of Civil Procedure to be made and filed as a condition precedent to the jurisdiction of the court to hear the case elsewhere than at the county courthouse, and to take the default of the party failing to appeal’. This defect of want of jurisdiction is not an irregularity which must be specified in the notice of motion, nor is it waived by the failure to raise the question in the court below. The judgment is void as unauthorized. The order denying defendants’ motion must be reversed, with costs, and the motion to vacate granted, with ten dollars costs of motion.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs.