Neal v. Brundage

New York Supreme Court

Neal v. Brundage

136 Misc. 695, 240 N.Y.S. 569, 1930 N.Y. Misc. LEXIS 1097

DecidedMarch 10, 1930

StatusPublished

This text of 136 Misc. 695 (Neal v. Brundage) 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

Neal v. Brundage, 136 Misc. 695, 240 N.Y.S. 569, 1930 N.Y. Misc. LEXIS 1097 (N.Y. Super. Ct. 1930).

Pincite

Opinion

Senn, J.

The motion is made in Chemung county. Under rule 63 of the Rules of Civil Practice the court is without jurisdiction to entertain it. Even if made in the proper county, I doubt whether, on the grounds stated by defendant, the court would do more than tó reduce the judgment to the amount named in the summons and notice. To this he would seem to be clearly entitled.

Defendant's counsel urges that rule 63 does not apply on the ground that the action is not pending and it is sought to enforce the judgment in Chemung county, where it has been docketed. This would be true if we regarded the judgment as a fact consummated and it was sought to restrain some illegal act under it. But the instant motion is clearly one made in the action, in fact to have it continued. As a part of his motion papers, defendant submits a proposed answer and asks to be allowed to come in and defend. This is inconsistent with his contention that the motion is not in the action.

The motion is denied, but without costs and without prejudice to its being made in the proper jurisdiction.

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Senn, J.

The motion is made in Chemung county. Under rule 63 of the Rules of Civil Practice the court is without jurisdiction to entertain it. Even if made in the proper county, I doubt whether, on the grounds stated by defendant, the court would do more than tó reduce the judgment to the amount named in the summons and notice. To this he would seem to be clearly entitled.

Defendant's counsel urges that rule 63 does not apply on the ground that the action is not pending and it is sought to enforce the judgment in Chemung county, where it has been docketed. This would be true if we regarded the judgment as a fact consummated and it was sought to restrain some illegal act under it. But the instant motion is clearly one made in the action, in fact to have it continued. As a part of his motion papers, defendant submits a proposed answer and asks to be allowed to come in and defend. This is inconsistent with his contention that the motion is not in the action.

The motion is denied, but without costs and without prejudice to its being made in the proper jurisdiction.

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Bluebook (online)

136 Misc. 695, 240 N.Y.S. 569, 1930 N.Y. Misc. LEXIS 1097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-v-brundage-nysupct-1930.