Gunning v. Appleton

57 How. Pr. 510

• Court: New York Court of Common Pleas
• Decided: July 1, 1879
• Status: Published

Opinion

Beach, J.

The order was granted by a judge of the superior court, and for that reason claimed to be void.

Section 277 of the Code of Civil Procedure confers additional power upon a county judge to grant orders in an action pending in a superior city court. It does not affect the disposition of this motion. Section 354 relates solely to the granting of orders in actions pending in county courts. This section is inapplicable, because, while the law has conferred upon the court of common pleas portions of the jurisdiction of the county courts in other counties (Code, sec. 286 et seq.), yet that falls far short of making this court a county court, and, therefore, subject to the provisions of title 5 of the Code of Civil Procedure, section 340 et seq.

I think authority to make an order similar to the one granted in this case is expressly conferred by section 772 of the Code. The order here is therefore valid.

Even were the views above expressed incorrect, the motion must be denied. The order complained of was granted June sixteenth; on June twenty-eighth the plaintiff’s attorney admitted due service of an order to strike out parts of the complaint, and likewise, on June thirtieth, of a demurrer to the complaint, and also, on September twenty-second, of a notice of trial of the issue of law. By these acts I think the plaintiff’s attorney waived any question arising under the order of June sixteenth extending the time to answer.

The motion is denied, with ten dollars costs to abide the event.