The main ground relied on to oppose this motion—that is, that the order of this court, changing the place of trial from the county of Rensselaer to the city and county of Mew-York; was irregular and void—has been disposed of at the special and general terms, in the third judicial district.
That question was distinctly presented before Justice Hogeboom, on the defendant’s motion heard before him in April last, to vacate and set aside the plaintiff’s judgment. In his opinion, he says, “ The defendant alleges that this order was ineffectual and without jurisdiction, being made in the first district, when the place of trial was still in the third district. But I cannot so regard it. It was effectually an ex parte order, both parties having agreed upon its terms. They both desired to change the place of trial, and both must be presumed to have consented to an order to that effect, to be executed whenever it was convenient. At all events, the stipulation, unless obtained by fraud, should be regarded as operative. I can
Justice Hogeboom then examines and discusses the question of fraud suggested in obtaining the stipulation, and holds that both parties may have acted in good faith. In this view I entirely concur.
As the results of his examination and opinion, Justice Hogeboom held, that the case was, therefore, properly heard in the city of Hew-York, and the judgment entered there must be deemed regular. As a consequence, the judgment perfected in Rensselaer county must be regarded as irregular, and should be set aside. And he adds, “ But I do not see that it can be done upon this motion. This is not the place to do it. The cause is not here, but in the city of Hew-York, and the motion should be made to the first district.”
From this order of Justice Hogeboom, the defendant appealed to the general term, which affirmed the order denying the motion to vacate the order changing the place of trial, and to set aside the subsequent proceedings therein. The motions are, therefore, res adjudicate/, in this court, and I have but to do what the court in the third district say should be done, set aside the judgment entered up by the defendant in this cause, and all subsequent proceedings therein, and all the proceedings had or taken by the defendant in the third judicial district since the date of the stipulation changing the place of trial.
As these proceedings were irregular, the motion is granted, with $10 costs.