New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1852-08-28

ture the application ran b. made only In the Second
District although the Judge residing In bronkiyn
aoten. IRON nome Tor he BAD been :. no % 40
application vas FIRST made to me, would not nave On
terfsned II At ell .
Section 400 of the Code says that every spphcanon
for an order Is motion Section tOl, as Snsnnea,
cnscts thai N lions mrst be made In toe Dstnctin
which the seson IL nisble 81. that no motions Gao oe
made In the Frat Dissct In sction trsoe
and that orders made out OF Court Without nou's' "D
be made BY Judge In any part OF the state 49,,
This action 10 trtsbe In the Second District sno 49,
no coub, had decided grsntthe injunction 10 ae
hrst instance, would have been an order on. u
without notice, but determined not % do max WIN
out notice to ard hearing the parties the question =
whether have thereby ousted myself OF the power VI
acting any further In the premises.
Although the language Of section 400 10 very orosl
10 evident that every application 10 not motion senio
the meaning Of section 4O for II IL we're 90, tue ea-
preston In section 40 that certain orders may % msde
by Judge anywhere In the State would be nueSory.
One duty In constituting a statute where tne1e su
actual conflict as In this cssc!is TO construe
allow part Of if 10 operate possioie, and nos u
make any part OF II pugstOry II that can be svo'ded
must therefore, hold ths, there are certain or'o.'
which are not motions and Mus restrict the gen
plicsiion Of the language of the 4oOth se'tion.
But the question Is whether orders are not moaons-
evidently those which are made out of Court ana WIKI
out notice. 60
When an application for order Is made In Cour.
with without notice, when IL Is made out OF Cou'
upon notice given il becomes motion under 'nis pro
vi,ion Of the Code. -
This does rot mean A new notice Of comfy, but
where 10 required by the practice ether unaer Ine
Code the rules n. general practice OF tne Vou
Section 2sl Of tie Code enscts that whHretoe CouI.
Judge oesns It proper that thu defendan, AGO ia 20
heard before grating oiunciion an order may DC
granted TO show cause why It should not be granted
Such also Always the practice OF toe Court anu
vas 10 compliance with that In the exercise OF "e os
creiicn vested 10 me- and not 10 the exaction oi nso
uary will, tina, granted the order to SHOW Gauss.
tseems 10 ne therefore. that By the act OF granting
the order to show csuse, the application 9ecsno AZ
ton within section 4Ol OF tbs Code, and became 90
prved OF any power 10 act further 10 toe ns"er' wa
not aware OF this when granted the order Tor up
that time this amendment TO the Code nid n't in1
nv eve II had been would have contsnteo nv sen 1
with refusing the injunction. leaving the snt 70 BIS
remedy by appeal The effect OF my order 20 nov
cause IL the same except that Ia not such reuS VI
Injunction 40 pre- cuded the plaintiff from 'ne
application 10 some Judge residing N the "a district
/ am not unmindfli Of the suggestion tnat u seems
ouIsr that shou have the power TO grant .ne IA
junction. az pdyfe but not when the parts are beard
but cannot help thst incougruity IL arises douoies
In inserting the amendments into the former secton
Bu, Il 10 not of much moment; certsoly not enough 70
warrant or require construction OF tho "suts sua'
would absolutely nulliiy portion OF It's exphc pro-
visions :, ,,.
must therefore dismiss this application, and leave
the plaintiff to puriue bis remedy whatever may De-
In hls own district