Cook v. Thurston

42 N.Y.S. 1084 | N.Y. Sup. Ct. | 1896

Wright, J.

This motion, having been made .prior to the date when the amendment of 1896 to section 1913 of the Code of Civil Procedure took effect, it must be decided under that section as it read prior to that amendment. Under section 71 of the Code of Procedure, as it stood in 1877, a conflict of authority existed on the question whether commencing the action without leave was merely an irregularity, curable by an order granted nunc pro tunc, as held in Church v. Van Buren, 55 How. 489; or whether granting leave was a jurisdictional prerequisite, as held subsequently to the above cited case, in Farish v. Austin, 25 Hun, 430, wherein the court says on page 433: “ The authority to sue was at the very basis of the right to sue.”

Said section 71 provided: “ Ho action shall be brought * * * without leave of the court for good cause shown, on notice to the adverse party.”

Since those decisions were made said section 71 has been superseded by section 1913 of the Code of Civil Procedure, which provides that such action cannot be brought, unless * * * “ the court * •* * has previously made an order granting leave to bring it.”

The requirement here made that the order shall be previously granted approves the doctrine laid down in Farish v. Austin, supra, and settles the question.

Motion denied, with $10 costs.