72 N.Y.S. 578 | N.Y. App. Div. | 1901
The order appealed from appoints a referee to ascertain the damages sustained by the defendant in this action by reason of an injunction theretofore granted herein on the application of the plaintiff. The injunction has been vacated and final judgment has been entered dismissing the complaint. The action was brought in Queens county and the place of trial was not changed. Plaintiff objected to the hearing of this motion in the first department, but his objection was overruled.
The question for determination on this appeal is whether the motion was properly made and entertained at Special Term in the first judicial district, the action being triable elsewhere.
Section 769 of the Code of Civil Procedure provides as follows: “A motion, 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; and a motion, upon notice, cannot be made in that district in an action triable elsewhere. But this section does not apply to a case where it is specially prescribed by law that a motion may be made in the county, where the applicant or other person to be affected thereby, or the attorney, resides.”
The motion was necessarily upon notice and entitled in the action. It is provided in section 628 of the Code that the damages sustained by reason of an injunction may be ascertained and determined by the court, or by a referee, or by writ of inquiry, or otherwise, as the court shall direct, and that the decision of the court or an order confirming the report of the referee shall be conclusive as to the amount of damages upon the persons who have executed the undertaking unless it is reversed upon appeal. It further provides that the court may, in its discretion, direct that the sureties have notice of the hearing or of an appeal, and may prescribe the time and manner of giving them notice. Section 625 of the Code of Civil Procedure prescribes that after the damages have been thus ascertained an action may be brought to recover the same by any person entitled to the benefit of the undertaking.
In Phillips v. Wheeler (67 N. Y. 104) it was stated that the corresponding statutory provision in force at that time related only to
We are of opinion that this is a motion in the action within the meaning and intent of the provisions of the Code hereinbefore quoted. This prohibition, it would appear from the language employed, was made for the express purpose of relieving the courts of this district and department, where the calendars are congested, trom hearing motions that may and should be heard elsewhere. But even if the making of the motion in the first district be not expressly prohibited, there is no propriety in its being made or heard here. An order of reference or a writ of inquiry to assess such damages in an action triable elsewhere should not be granted in this judicial district. Ordinarily an assessment should be made in the county where the venue is
The order should be reversed, with ten dollars costs and disbursements, and motion dismissed, with ten dollars costs.
Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion dismissed, with ten dollars costs.