a. The amendment of 1852 is the insertion of the words printed in italie.

b. This section is a revision and substitute for section 51, in the judiciary act of 1847. It extends the territor al limits within which a motion may be made, so as to embrace the entire district in which the action is triable. And it is plain that such extension was the only object of the revision. Gould v. Chapin, 4 Pr. R., 185.

c. This section (401) does not apply to suits existing at the time of the passage of the code, nor to a special statutory proceeding. In re Hick's Will, 5 Pr. R., 316; 2 Code Rep., 128.

Note to clause 1 of this section.

d. The application to have costs of an appeal from a decree of a surrogate taxed, is not an application for an order within section 401. Brockway v. Jewett, 16 Barb., 590.

e. An appeal pursuant to section 349, is a motion. Savage v. Darrow, 2 Code Rep., 57.

f. An application for judgment pursuant to section 247, is a motion. Roberts v. Clark, 10 Pr. R., 415.

g. The review of a decision of a single justice, by a rehearing at general term, was held to be a motion," within the definition of this section. Van Wyck v. Alliger, 1 Code Rep., 68.

h. In one case it was said, that the application for judgment, on failure to answer, under section 246, was not a motion, but was more in the nature of a trial, or assessment for damages. Anon., 1 Code Rep., 82. And the same was held of an application for judgment under section 247. Jones v. Bentley, 3 Code Rep., 37; 4 Pr. R., 335; King v. Stafford, 5 ib., 30.

Note to clause 3 of this section.

i. The county in which an action is triable, is the county in which the venue is laid; that is, the county named as the place of trial in the complaint. Gould v. Chapin, 4 Pr. R., 185.

j. The reasonable construction to be given to the phrase, "the county where the action is triable," includes any county in which, according to sections 123, 124, and 125, the plaintiff is at liberty to have the action tried. Peebles v. Rogers, 5 Pr. R., 208.

k. Where no copy of the complaint has been served, and no complaint has been filed, the defendant, for the purpose of moving, is at liberty to regard the county in which the summons states the complaint will be filed, as the county in which the action is triable. Johnston v. Bryan, 1 Code Rep., N. S., 46.

1. Actions triable in Erie county, require all motions in relation to them to be made in the 8th district, as there are no counties out of that district adjoining Erie. Ingleheart v. Johnston, 6 Pr. R., 80. The defendant's counsel supposes the true reading of section 401, to be, that the motion must be made in the district in which the action is triable or in a county adjoining that in which it is triable, or in a county adjoining such district. I think, however, the antecedent to the pronoun that' in the passage in question is county,' and means the same as if the sentence had been "or in the county adjoining the county in which it is triable." Ib., Welles, J.

m. This clause applies only to motions on notice. Peebles v. Rogers, 5 Pr. R., 208, n. All motions in the supreme court, and all suits and proceedings in equity in said court, arising in the county of Orleans, may be brought to a hearing at any special or general term of said court in the county of Erie, in the same manner as though the said county of Erie was adjoining the said county of Orleans. Laws of 1848, ch. 35, p. 47.

Note to clause 4 of this section.

o. The special or general terms of the supreme court in the first judicial district have no jurisdiction to hear a motion in an action triable in another district. Harris v. Clark, 10 Pr. R., 415.

p. The fair import of this section is that no motion shall be made in the first dis

BLIO

trict, in a cause in which the place of trial is in another district. Canal Bank v. Harris, 10 Pr. R., 192.

a. The county in which a motion should be made is not a question of jurisdiction. Giller v. Hoyt, 7 Pr., 265.

Note to clause 5 of this section.

b. The term "the court" means the court in which the action is pending. Mann v. Tyler, 1 Code Rep., N. S., 383; 6 Pr. R., 236.

Note to clause 6 of this section.

c. A county judge has power to make an order staying proceedings on a judgment entered upon a report or referees, but not to stay proceedings after verdict. This section evidently intended to restrict the word verdict to the finding of a jury. (Otis v. Spencer, 8 Pr. R., 171). Welles, J.

d. In the case of The Steam Navigation Co. v. Weed (8 Pr. R., 49), the issues were tried before a referee, who reported in favor of the defendants. Judgment was entered on this report. Subsequently the plaintiffs served a notice of appeal; and an order was made by a justice of the supreme court out of court, staying defendant's proceedings on the judgment pending the appeal. The order was made without notice to the defendants. On motion, Harris, J., set aside the order, saying, "The court may, if it think fit, make an order (staying the proceedings) without requiring notice to the adverse party; but when the application is made to a judge out of court, the most he is authorized to do is to make an order that the adverse party show cause, before himself or some other judge, or some court having authority to entertain the application, why the proceedings should not be stayed until the case can be heard and decided upon the appeal, and staying proceedings in the mean time. The last paragraph of the 401st section of the code is as applicable to such an order as any other. The order staying proceedings in this case, therefore, was unauthorized."

e. No judge has the right arbitrarily to make an ex parte order staying proceedings in an action for a given period, or twenty days (s. 401). The stay should always be, until the party obtaining it can make some other application for relief. Chubbuck v. Morrison, 6 Pr. R., 367, Harris, J.; and in Sales v. Woodin, 8 Pr. R., 350, the same judge (Harris) held, that an order to stay proceedings, to render it effectual, must be accompanied by a notice of motion. An order to stay proceedings for a given number of days is never proper. It should always be limited by the time when the party can make application for the relief he seeks. In one case, Langdon v. Wilkes, 1 Code Rep. N. S., 19,) it was held by King, J. that, several orders each staying the proceedings for less than twenty days, but collectively more than twenty days might be made. That case was cited in the superior court; and per Duer, J., "I cannot follow the decision that has been cited; the meaning of the code is that there shall be no stay of proceedings beyond twenty days, except upon notice to the adverse party; and whether a stay exceeding the time limited be granted by a single order or by successive orders, is immaterial. The intent of the provision is as much violated in the one case as in the other, nor do the words force us to adopt a different construction. A second order extending the stay twenty days beyond the twenty first allowed, is as truly an order to stay proceedings for a longer time than the code permits, as a single order for forty days." Anon., 5 Sand., 656; and in Sales v. Woodin (8 Pr. R., 349), where a defendant obtained two consecutive ex parte orders, simply "that the plaintiff's proceedings be stayed twenty days," on applying ex parte for a third order to the like effect, Harris, J., observed, "Such practice is a clear violation of the spirit if not the letter of section 401. The obvious intention of the legislature was that the power of a judge to arrest the proceedings of a party by an ex parte order should be limited to twenty days. To effect a stay for a longer time by a series of orders each by itself within the statutory limit, but in the aggregate exceeding that limit, is but an evasion of the statute. It is but an attempt to accomplish indirectly what could not be done directly.".

f. A motion in arrest of judgment cannot be made at chambers. (Duel v. Agan, 1 Code Rep., 134), nor can a motion for a new trial. Lusk v. Lusk, 3 Code Rep., 113; Graham v. Milliman, 4 Pr. R., 435.

a. An order extending the time to make a case or exceptions is not per se a stay of proceedings, and this clause of the section does not apply to such an order. Thompson v. Blanchard, 1 Code Rep., 105; Huff v. Bennett, 2 ib. 139.

b. An order extending the time to answer was held not to be a stay of proceedings. Wilcock v. Curtis, 1 Code Rep., 96.

c. An order of a judge staying proceedings cannot be treated as a nullity on the ground that it was improvidently granted, or improperly or fraudulently obtained. (Harris v. Clark, 10 Pr. R., 416.) The proper remedy is to move to have it vacated. (Hempstead v. Hempstead, 7 Pr. R., 8.) There are dicta to the effect that an or der of a judge staying the proceedings more than twenty days may be treated as a nullity (Anon., 5 Sand. 656; Sales v. Woodin, 8 Pr. R., 349; Huff v. Bennett, 2 Code Rep., 139); and in Traver v. Silvernail (2 Code Rep., 96), where the plaintiff disregarded the order of a county judge staying the proceedings, and eutered judgment, Parker, J., held the judge had no power to stay the proceedings, and that the plaintiff was not irregular in disregarding the order.

§ 402. [363.] (Amended 1849.) Notice of motion.

When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a

shorter time.

d. Rule 32 of Supreme Court Rules, in Appendix, requires non-enumerated motions except in the first district, to be noticed for the first day of the term or sitting, unless sufficient cause shall be shown for the omission; and then a motion may be noticed for a day in term special other than the first, but sufficient excuse must appear upon the moving papers. Whipple v. Williams, 4 Pr. R., 28.

e. The first part of this rule does not apply to motions made on the regular notice of 8 days. Lakey v. Cogswell, 3 Code Rep., 116. The last part of rule 32 of the rules of the supreme court was held to be inconsistent with section 401 of the code. Ib.

f. By a rule of the court of common pleas for the city and county of New York (see Appendix, and 2 Code Rep., 138), it is

Ordered, That orders to show cause on non-enumerated motions will not hereafter be granted, except upon affidavit showing the necessity of making the time of notice shorter than is required in the code; and where such order is returnable on any other day than the first day of the special term, the reason there for must be stated in the affidavits on which the motion is founded.

g. "Can a judge at chambers make an order prescribing a shorter notice than eight days of a motion not to be heard before him?" Harris, J., in Merritt v. Slocum, 6 Pr. R., 350. In that case, the plaintiff, having obtained the report of a referee in his favor, he on the 22d of August obtained an order from the recorder of Troy, requiring the defendant to show cause on the 26th of August, at a special term of the supreme court, why the report should not be confirmed. The defendant objected that no sufficient notice of motion had been given; and Harris, J., sustained the objection on the ground that only the court or the judge before whom a motion is to be made, ean make an order reducing the length of the notice of motion, and that if the application is not to be made before a judge out of court, then no judge out of court can make the order to show cause.

h. Semble, This section gives no authority to shorten the notice of a motion, pursuant to section 247. Lefferts v. Snediker, 1 Abbott, 41.

See sections 412, 413.

§ 403. [364.] In actions in supreme court, county judge may act at chambers. His orders, how reviewed.

In an action in the supreme court, a county judge, in addi

tion to the powers conferred upon him by this act, may exercise, within his county, the powers of a judge of the supreme court at chambers, according to the existing practice, except as otherwise provided in this act. And in all cases where an order is made by a county judge, it may be reviewed in the same manner as if it had been made by a judge of the supreme

court.

a. This section is identical with section 364 of the code of 1848, and per Harris, J.-Parker, J., it is said, concurring,-Section 364 (now 403) does not, as has been supposed, enlarge the powers of the county judge. Merritt v. Slocum, 1 Code Rep., 68.

b. Every county judge within the county in which he shall have been elected, shall have power, and it shall be his duty, to perform all such duties, and to do all such acts when not holding a county court, as might have been done or performed by the laws in force on the 12th of May, 1847, by the judges of the common pleas, or by any one or more of them, at chambers or otherwise, when not holding court, or by any such judge being of the degree of counsellor of the supreme court, and acting as a supreme court commissioner. 2 R. S., 4 ed., 385, s. 24; Laws of 1847, ch. 470, s. 27.

c. A county judge has power independent of the code to grant an order extending the time to answer. There is nothing in any part of the code which takes away any of the powers given to county judges by the 27th section of the judiciary act of 1847, except that part of section 401 which enacts that "motions must be made within the district," &c. And this clause must be understood as applying exclusively to motions made upon notice. Peebles v. Rogers, 5 Pr. R., 208; 3 Code Rep., 215.

d. Although a county judge must perform his official duties within his county, yet his acts when done may have effect in any and all parts of the State. Ib.

e. The case of Peeble sv. Rogers, was not concurred in by Harris, J., in Chubbuck v. Morrison, 6 Pr. R., 367; and it was there held that a county judge has no authority to make an order staying proceedings, in an action pending and triable in another county.

f. Where the place of trial mentioned in the complaint was the city and county of New York, and a county judge of the county of Kings had granted an injunction order, on motion to vacate such order the court said, "Section 218 says the order may be made by "a" county judge, using the indefinite article; and section 403 defines what county judge is intended; and from that it appears it must be a county judge of the county in which the action is triable: that being so, the injunction order in this case is a nullity. Eddy v. Howlett, 2 Code Rep., 76.

g. Where a county judge makes an order in an action pending in the supreme court, he acts as a justice of that court at chambers, and his orders are to be reviewed in the same manner as an order at chambers. Conklin v. Dutcher, 1 Code Rep. N. S., 49.

h. Where an order was granted by a county judge, giving a respondent ten days further time to serve an affidavit on an appeal from a justice's court, held, that he had power to make such order. Truax v. Clute, 7 Leg. Obs., 163.

See Rules of New York Common Pleas, in Appendix.

§ 404. [365.] (Amended 1849.) In absence, &c., of judge at chambers, motion may be transferred by him to another judge.

When notice of a motion is given, or an order to show cause

is returnable before a judge out of court, and at the time fixed for the motion he is absent or unable to hear it, the same may be transferred, by his order, to some other judge, before whom the motion might originally have been made.

a. "In the first district, all motions noticed for hearing at chambers, not heard on the day for which they are noticed, in consequence of the inability of the court to hear the same, stand over, as a matter of course, until the next day, unless a different disposition should be made by the direction of the judge, or the consent of parties." Mathis v. Vail, 10 Pr. R., 458, Clerke, J.

If a judge is absent, how can the motion be transferred by his order?

§ 405. [366.] (Amended 1849.) Enlarging time for proceedings in an action.

The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or if the action be in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded.

This section is identical with section 366, in the code of 1848.

b. In an action commenced prior to 1st July, 1848, decided under the code of 1848, sections 362-366, it was said, that under the former practice, an order to enlarge the time to make a case or bill of exceptions, was invariably granted ex parte, and without an affidavit, the judge who tried the cause acting from his own knowledge of the facts and questions of law arising in the case; section 366 (code of 1848) allowing an order to be disregarded unless the affidavit on which it was granted, or a copy thereof, be served with a copy of the order, is inapplicable to an order to enlarge the time to make a case or bill of exceptions, when the order is granted by the judge who tried the cause. Thompson v. Blanchard, 1 Code Rep., 105. But if such an order be made by a judge other than the judge who tried the cause, the requirements of sections 405 and 401, subd. 3, must be complied with, and a copy of the affidavit must be served with the order. Ib. And Savage v. Relyea, 1 Code Rep., 42; 3 Pr. R., 276.

c. A judge at chambers cannot extend the time to make a case after the ten days have expired. The party must apply to the court, on notice. Doty v. Brown, 3 Pr. R., 375; 2 Code Rep., 3.

d. The provision in this section requiring the affidavit on which the order is made, or a copy thereof, to be served with a copy of the order, relates only to orders granted in actions enlarging the time within which any proceeding may be had, and does not, therefore, apply to an order under section 292. Green v. Bullard, 8 Pr. R. 315.

e. An order for time to make a case and bill of exceptions, is not a stay of proceedings; therefore a judge other than the judge who tried the cause may make an order ex parte, giving a party thirty days to make a case and bill of exceptions. Huff v. Bennet, 2 Code Rep., 139; 2 Sand., 703. And see Thompson v. Blanchard, 1 Code Rep., 105.

f. An order granted ex parte under this section, need not be entered with the clerk. Savage v. Relyea, 3 Pr. R., 276; 1 Code Rep., 42.

g. It has been suggested that this section (405) should be read in connection