Chubbuck v. Morrison
New York Supreme Court
Motion to set aside judgment and subsequent proceedings. An issue of fact having been joined in the action, it was referred and noticed for trial before the referee on the 3d of March. The place of trial stated in the complaint is Saratoga county. The defendants reside in Rensselaer county. On the 2d of March the defendants’ attorney, upon the usual affidavit for that purpose, gave notice of a motion for a commission to examine a foreign witness.
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Motion to set aside judgment and subsequent proceedings. An issue of fact having been joined in the action, it was referred and noticed for trial before the referee on the 3d of March. The place of trial stated in the complaint is Saratoga county. The defendants reside in Rensselaer county. On the 2d of March the defendants’ attorney, upon the usual affidavit for that purpose, gave notice of a motion for a commission to examine a foreign witness. With the papers for the motion, he also served an order, granted by the county judge of Rensselaer, in the following words: “ Let the plaintiff’s…
1Opinion of the Court
Harris, Justice.
Two questions are presented for decision upon this motion. 1. Whether the county judge of Rensselaer had authority to make an order staying proceedings in an action pending in Saratoga county; and 2. Whether, if he had such authority, he, in fact, made an order which would have that effect.
By the 401st section of the Code, it is provided, that every motion made upon notice, must be made in the district where the action is triable, or in a county adjoining that in which it is triable. But, according to the provisions of the Code, as amended in 1851, any action may be tried in…
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