Cullom v. R. Hoe & Co.

New York Supreme Court

Cullom v. R. Hoe & Co.

206 Misc. 836, 135 N.Y.S.2d 264, 1954 N.Y. Misc. LEXIS 2920

DecidedOctober 1, 1954

StatusPublished

This text of 206 Misc. 836 (Cullom v. R. Hoe & Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cullom v. R. Hoe & Co., 206 Misc. 836, 135 N.Y.S.2d 264, 1954 N.Y. Misc. LEXIS 2920 (N.Y. Super. Ct. 1954).

Pincite

Opinion

Colden, J.

Application by an order to show cause for an order changing the place of trial of this action from the County of Suffolk to the County of New York, pursuant to section 187 of the Civil Practice Act, on the ground that the convenience of witnesses and the ends of justice will be promoted by such change. The order to show cause was signed by Mr. Justice Ritchie and by him made returnable before this court for argument on September 14. The application was argued the twenty-eighth day of September.

Upon the argument it appeared that an application for precisely the same relief as that here sought was made before Mr. Justice Ritchie who, on August 4,1954, made a decision in writing denying the application which was followed by an order dated August 30,1954, reciting the application for an order pursuant to section 187 of the Civil Practice Act, and concluding with the direction: “ Ordered that said motion be and the same hereby is, in all respects, denied.”

Plaintiff urges that this application must be denied because the defendant has violated the provisions of section 118 of the Civil Practice Act which so far as is pertinent to this application reads: “ If an application for an order, made to a judge of the court or to a county judge, is wholly or partly refused, or granted conditionally, or on terms, a subsequent application in reference to the same matter and in the same stage of the proceedings shall he made only to the same judge or to the court.” (Emphasis supplied.)

The defendant suggests that because Mr. Justice Ritchie signed the show cause order and inserted the date of the return day, that such acts on the part of Mr. Justice Ritchie avoids the statute. This court does not agree with this contention.

This application is respectfully referred to Mr. Justice Ritchie.

Settle order on notice.

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Colden, J.

Application by an order to show cause for an order changing the place of trial of this action from the County of Suffolk to the County of New York, pursuant to section 187 of the Civil Practice Act, on the ground that the convenience of witnesses and the ends of justice will be promoted by such change. The order to show cause was signed by Mr. Justice Ritchie and by him made returnable before this court for argument on September 14. The application was argued the twenty-eighth day of September.

Upon the argument it appeared that an application for precisely the same relief as that here sought was made before Mr. Justice Ritchie who, on August 4,1954, made a decision in writing denying the application which was followed by an order dated August 30,1954, reciting the application for an order pursuant to section 187 of the Civil Practice Act, and concluding with the direction: “ Ordered that said motion be and the same hereby is, in all respects, denied.”

Plaintiff urges that this application must be denied because the defendant has violated the provisions of section 118 of the Civil Practice Act which so far as is pertinent to this application reads: “ If an application for an order, made to a judge of the court or to a county judge, is wholly or partly refused, or granted conditionally, or on terms, a subsequent application in reference to the same matter and in the same stage of the proceedings shall he made only to the same judge or to the court.” (Emphasis supplied.)

The defendant suggests that because Mr. Justice Ritchie signed the show cause order and inserted the date of the return day, that such acts on the part of Mr. Justice Ritchie avoids the statute. This court does not agree with this contention.

This application is respectfully referred to Mr. Justice Ritchie.

Settle order on notice.

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Bluebook (online)

206 Misc. 836, 135 N.Y.S.2d 264, 1954 N.Y. Misc. LEXIS 2920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cullom-v-r-hoe-co-nysupct-1954.