(concurring.) The order of arrest was made by Mr. Justice Kennedy, and that entitled the defendants to move before him as such justice, without notice and also with notice to the plaintiff to vacate it. Code Civil Proc. § 568. They made each of these motions, and they were denied by Justice Kennedy. In the denial of the last motion the order directed that it was “ without prejudice to defendants’ right to renew the same at special term.” The section just referred to did not provide for the making of that motion at a special term held in his own district or by Justice Kennedy. It ■authorized him at a special term held by himself to hear and decide an appli*544cation to vacate the order on the papers on which it was granted. ' That' could be made either with or without notice; but when made in either mode the application was to be heard only on the papers on which the order was founded. When the application proceeded upon proof byaflidavit on the part of the defendants, then this section has authorized it to be made to the court itself, or to-any judge of the court. If made to the court, it has not been provided that it can be made to any court, or to the court held in the district in which the order has been made; but that has been left subject to other provisions declaring to what court the motion may be addressed. That was the final condition in which this action was left by the order,—the motion was to be made at a special term; and, when a motion is to be,made at the special term, section 769 of this Code has declared where it shall be made; that is, at a court held in the district, or a county adjoining the district, in which the action is triable. But when the action is triable in the first judicial district, then the'motion must be made there. The place of trial in this action is the county of New York, forming the first judicial district. The action was there triable, therefore; and, as the motion to discharge the order of arrest was to be made only at special term by the order which Justice Kennedy finally made, and under which the motion was brought on, it should have been made in the first district. So much of the order of Justice Kennedy as permitted the renewal of the motion is free from all possible ambiguity. It was to be at special term, and that included only the special term having the power under the law to hear it; and, as no special term out of the first judicial district had that power, it follows that the special term held in the city of Syracuse, which is in the fifth judicial district, and which heard and decided the motion, was without that authority; and the case of Sutton v. Sabey, 22 Hun, 557, fully sustains this construction of the law. The order vacating the order of arrest was accordingly made without jurisdiction over the subject, and should, without considering the merits, be reversed, with $10 costs and the disbursements.
Lawrence, J., concurs.