Blackmar v. Van Inwager
New York Supreme Court
Motion to set aside inquest. On the 23d September last, at a special term held at Albion in Orleans county, the defendant’s counsel, upon regular notice, applied for and obtained an order for a commission to examine a witness in New Orleans, which order contained a provision that all proceedings on the part of the plaintiff be stayed until the return of the commission. The order was duly served on the plaintiff’s attorney on the 26th September.
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Motion to set aside inquest. On the 23d September last, at a special term held at Albion in Orleans county, the defendant’s counsel, upon regular notice, applied for and obtained an order for a commission to examine a witness in New Orleans, which order contained a provision that all proceedings on the part of the plaintiff be stayed until the return of the commission. The order was duly served on the plaintiff’s attorney on the 26th September. The complaint specified the county of Wayne as the place of trial. Issue was duly joined in the action by reply to the defendant’s answer previous to…
1Opinion of the Court
Welles, Justice.
In Inglehart, adm’r &c. vs. Johnson, decided at the late Monroe circuit and special term, it was held that a motion must be made within the district in which the action is triable, or in a county adjoining the county in which it is triable. That such was the true reading of section 401 of the Code. It was therefore irregular to notice the motion for the commission in Orleans county; but the motion was granted without opposition, and the question is whether the plaintiff had a right to treat the order as a nullity. The plaintiff’s counsel has referred to the cases of Spencer…
2Cited by2 opinions
- Moulton v. BeecherNew York Supreme Court · 1876
- Goldreyer v. FoleyAppellate Division of the Supreme Court of the State of New York · 1913