
    ROGERS a. McELHONE.
    
      Supreme Court, Third District;
    
    
      General Term, October, 1860.
    Motion to vacate Arrest.—County Judge’s Order.
    The provision of section 204 of the Code of Procedure,—allowing an application to vacate an order of arrest to be made on motion,—requires a motion to the court, and upon due notice.
    A county judge who has granted an order in an action in the Supreme Court,— e. c/., an order of arrest,—has-no power to vacate it on notice.
    The notice of a motion must be eight days, and an order granted on shorter notice is improper, unless, by an order preliminary and antecedent to the service, the court or judge has shortened the time.
    Appeal from an order vacating an order of arrest.
    In this action, which was brought in the Supreme Court, the plaintiff applied to the county judge of the county of Sullivan, for an order of arrest. The defendants, on affidavits and on one day’s notice, applied to the same judge to vacate the order, which he accordingly did. The plaintiff now appealed to the Supreme Court at general term.
    
      Ira Harris, for the appellant.
    
      John K. Porter, for the respondents.
   By the Court.—Hogeboom, J.

—In this case the county judge of Sullivan county, on papers fully justifying it, granted an order of arrest against the defendants in an action in this court, upon contract, for their fraud committed in the purchase of the property, to recover the price of which the action was brought. Subsequently, upon one day’s notice, and upon conflicting affidavits, the same officer vacated the order of arrest; objections being made by the plaintiff against his power to do so, and against the sufficiency in length of time of the notice of motion, which objections were overruled by the county judge. The case comes here by appeal from his order vacating the arrest, and the questions discussed arise upon the validity of the said objections.

By section 180 of the Code, “ an order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought, or from a county judge.”

By section 204 of the Code, a defendant arrested may at any time before judgment apply on motion to vacate the order of arrest, or reduce the amount of bail.”

A motion is an application for an order. (Code, § 401.) An application for an .order to vacate an order of arrest is, therefore, a motion. It has been so expressly held to be, when made to the judge who granted the order—an evyparte motion, which the judge can grant -within the terms of section 324. (Cayuga County Bank a. Warfield, 13 How. Pr., 439.) By section 324, an order made out of court without notice, may be vacated or modified without notice by the judge who made it, or may he vacated or modified on notice, in the manner in which other motions are made. The manner in which other motions are made is (1), to make them to the court (or a judge thereof) in which the action is pending; and (2), to make them upon eight days’ previous notice, unless a shorter time is by proper authority designated. A county judge is not a judge of the Supreme Court. He may, by section 403, in an action in the Supreme Court, exercise within his county the powers of a judge of the Supreme Court at chambers. Beyond this, he has no power in the Supreme Court, except that conferred specially by some other sections of the Code. I think a judge of the Supreme Court at chambers has no power to vacate an order of arrest, except where he granted the order of arrest, and upon an ecc-jparte application. It has been expressly held, that an application to vacate an order of arrest, when made to any other judge, must be made to the court, on notice, in the same manner in which other motions are made. (Cayuga County Bank a. Warfield, 13 How. Pr., 439.) I think when the Code says, therefore, in section 204, that an application to vacate the order of arrest may he made on motion, that it means, in the same manner as other motions are made, to wit: a motion to the court, and upon sufficient notice. Section 205 contemplates a litigated motion in the ordinary sense, when it says that such a motion may be heard on new or additional affidavits produced by each party. Section 225, which authorizes an application to vacate an injunction to be made on notice to a judge of the court, is not inconsistent with, but rather confirmatory of this view, and creates an exception to the ordinary rule. A county judge has no power under the Code to hear a motion, as such, in an action pending in the Supreme Court. (Merritt a. Slocum, 3 How. Pr., 309.)

The objection to the sufficiency of the notice seems also to me to be well taken. The Code provides for a notice of eight days (§ 402), and this length of notice is indispensable, unless, by an order preliminary and antecedent to the service, the court or judge has shortened the time. (Code, § 402; Merritt a. Slocum, 6 How. Pr., 350; Androvette a. Bowne, 4 Abbotts’ Pr., 440; S. C., 15 How. Pr., 75.)

Rot to discuss the question, whether this can be done in any other way than by an order to show cause, nor the question, whether the county judge has the power to make such an order, it is sufficient to say that none such was attempted to be made, and the party was compelled to answer the motion upon a one-day notice.

The order to vacate was improperly granted, and should be reversed, with $10 costs of appeal.

Peckham, J., concurred in the result of the foregoing opinion.

Gould, J., dissented.  