New York County NyArchives Court.....Thompson, Jennie Vs. John Thompson 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department. March Term, 1889.

JENNIE M. THOMPSON and JOHN O THOMPSON, as Executors, etc., of JOHN B. THOMPSON, 
Deceased, Appellants, v. CHARLES E. THOMPSON, Respondent, Impleaded, etc.

Motion to amend the record of a trial had in the first judicial district — where 
and before whom to be made.

An application to the court to suspend the entry of judgment in an action, on 
the trial of which, in the first judicial district, an order has been made 
directing that the exceptions be heard in the first instance at the General 
Term, must be made before the justice before whom the action was tried, and must 
be made within the first judicial district.

An order made by such judge upon such an application, made to and heard before 
him in the county of Erie, amending the record of the court on the trial by 
adding at the end thereof "and judgment in the meantime suspended," will be set 
aside.

Appeal from an order made at a Special Term of the Supreme Court, held at the 
city of Buffalo, in and for the eighth judicial district, and entered in the 
office of the clerk of the county of New York on the 21st day of February, 1889, 
vacating a judgment theretofore entered in said action on a trial thereof in the 
first judicial district, and amending the record of the clerk of the court, made 
on the trial thereof, by adding at the end thereof the words "and judgment in 
the meantime suspended."

Lewis Sanders, for the appellant.

E. H. Pomeroy, for the respondent.

Van Brunt, P. J.:

This action had been tried by Mr. Justice Childs and a jury at a Circuit Court 
held in the county of New York. An order was made directing the exceptions to be 
heard in the first instance at the General Term, but no provision was made in 
said order for suspending the entry of judgment. The plaintiff thereupon entered 
judgment and this motion was made upon notice that it would be brought on before 
Mr. Justice Childs at his chambers in the courthouse, in the city of Buffalo, on 
the 31st of January, 1889, at ten o'clock on that day. Upon the coming on of the 
motion it was preliminarily objected by the counsel for the plaintiff that the 
motion should be made in the county of New York and could not be made in the 
county of Erie, which objection was overruled and the motion granted, and an 
order was entered vacating and setting aside the judgment entered, and amending 
the record of the clerk of the court by adding at the end thereof the words "and 
judgment in the meantime suspended." From this order the appeal is taken.

By section 1000 of the Code it is clear that the judge who tried the cause had 
the power, at any time before the hearing of the exceptions, to modify or revoke 
the order directing the exceptions to be heard in the first instance at the 
General Term, upon notice, in court or out of court. But it is equally clear 
that section 769 required that such motion should be made in the county of New 
York. The provisions of this section are that 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 the county adjoining that in which it is triable, 
except that where it is triable in the first district, the motion must be made 
in that district.

The application to set aside this judgment and amend the order directing the 
exceptions to be heard in the first instance at the General Term, was clearly a 
motion, as by section 768 a motion is defined to be an application for an order. 
The requirements of section 1000 are that such applications shall be made upon 
notice, and the provisions of section 769 are that motions, upon notice in 
actions triable in the first judicial district must be made in that district. It 
seems clear, therefore, that Mr. Justice Childs had no power to entertain this 
motion outside of the county of New York.

The claim upon the part of the respondent that because the motion came up for 
hearing before Mr. Justice Childs, therefore, in effect, the motion was made 
here, and it would be ridiculous to ask him to come to New York to hear the 
motion does not meet the provisions of the Code. They are explicit, reasonably 
clear and cannot be repealed by judicial legislation. It may be inconvenient, 
but inconvenience cannot establish rules of practice inconsistent with express 
legislation. In making the disposition of the appeal that we do, we in no manner 
express any opinion as to the propriety of Mr. Justice Childs' order. That 
question is not before us, the only question being as to his power to entertain 
this motion in Buffalo.

The order should be reversed, with ten dollars costs and disbursements; the 
order to recite that the same is not reversed upon the merits.

Bartlett, J., concurred.

Order reversed, with ten dollars costs and disbursements; the order to recite 
that the same is not reversed upon the merits.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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