Motion for an order vacating and/or modifying a notice of examination before trial. The venue of the action is laid in Suffolk County. The motion is made in Kings County in the Second Judicial District. Subdivision 1 of rule 63 of the Rules of Civil Practice provides in substance that a motion on notice in an action in the Supreme Court must be made within the judicial district in which the action is triable or in a county adjoining the county in which the action is triable.
Prior to January 1, 1945, such procedure on the part of the moving party was proper inasmuch as Suffolk County and Kings County were both within the Second Judicial District. By chapter 617 of the Laws of 1944 the Legislature undertook to create the Tenth Judicial District consisting of Nassau and Suffolk Counties, which statute was to take effect on the aforementioned date. In view of the fact that the question of the constitutionality of the statute last mentioned is under attack and various proceedings are pending for the purpose of testing such constitutionality, and in view of the further fact that such question of constitutionality has not been raised here, this court will not pass upon that question.
The motion must be denied without prejudice because under the aforementioned rule motions in actions pending in Suffolk County may be made only in the counties of Suffolk or Nassau.