94 N.Y.S. 815 | N.Y. App. Div. | 1905
The defendant moved to consolidate these actions — the venue of which was the county of New York. The motion was denied and he appealed to this court. Pending the appeal, without notice to the plaintiff or his attorney, the defendant applied to and obtained from the Canastota Special Term an order staying all proceedings in action No. 1 until the hearing and determination of the appeal.The plaintiff thereupon moved, upon notice at the New York Special Term, to vacate this order. The motion was denied and the plaintiff has appealed.
The motion to vacate should have been granted. The order which the plaintiff asked to have vacated was obtained without notice and in disregard of rule 37 of the General Pules of Practice which required notice. (Dupignac v. Van Buskirk, 44 Hun, 45.) And, irrespective of the rule, the plaintiff was entitled to be heard before an order could be made which indefinitely stayed the prosecution of the action. Notice of the application for the order should have been given, and this being so the motion should have been made at the New York Special Term (in which county the actions were triable) and not at the Canastota Special Term. The Code of of Civil Procedure (§ 769) so provides. The section cited provides that “ a motion upon notice ”— and this one should have been 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.” If the defendant desired and thought he was entitled to a stay of proceedings he should have made his motion returnable at the New York Special Term and upon notice. Not having done so, but instead having applied, éx parte, to the Canastota Special Term and obtained such order, the plaintiff was entitled to have it vacated.
The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs..
Present-^ O’Brien, P. J., Patterson, Ingraham, McLaughlin and Laughlin, JJ.
Order reversed, with ten dollars costs and’ disbursements, and motion granted, with ten dollars costs.
