Neal v. Brundage

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.