The New York herald., 1871-01-03

peal II the General Term should hold the order 10
be appealaole ana should reverse IT, then the place
0f rlal would be changed back TO New York. But In
the meantime t Ia In Rensselaer, and there IL whei
the papers should be. The County Clerk, therefore,
should not be forbidden TO transfer them where they
belong II the stay OF proceedings prevented the
Clerk from transferring the papers then II un-
necessary to insert that additional clause forbddlog
the transfers II IL did not then the clause should not
have been Inserted, for stay OF proceedings IL
all tnat Is authorized ON such an appeal (sec 85o.)
see no reason why there should be n stay OF pro-
ceedngs. IL u very doubtful whether the order Is
appealable: The change OF trial IL for the conye-
nience % OF witnesses and ! do not think
convenience can ). be said TO onect a
Substantial right" It Is a matter OF
the parties but OF witnesses. so far "a know such
an order has never been held 10 be appealable
houck ys. Lasher, ~ How $40, was a case where
the county designated was claimed not 10 be the
proper county under section l25. and presented a
different question. There IL pain omission OF the
word mott OH page 523 OF Judge Harris opinion,
30 that his remark (Which may be obiter Is to the
effect that change OF the place OF trial on the
ground OF convenience OF witnesses Is not appeala-
Bile. The defendant ought to be at liberty to go on
with the action, to notice the appeal for argument,
TO noce the case for trial, and 10 try IT, As TO the
9th, think II irregular. No motion can be heard
In the First district since the place or trial has been
that order Is put the ground that il s only for the
purpose OF resettling OF the order granted by
the special Term held by Judge Brady then IL
Is worse than irregular. The settling OF an order
IL merely the putting judges decision into formal
language. When a Judge has thus expressed In
formal language what is the decision OF the court
held by him no court mas any right to alter H. An
appellate court may reverse it. But II Is preposte-
rous to claim that the Judge does not know how to
express his own decision ana that some other court
must correct his statement OF what he decided The
eVs Oh such practice as Is here attempted are TOO
plain TO need comment. And In this case there Is
nothing To correct. The defendants made out such
case as satisfied the Court that the place OF trial
should be changed for the convenience OF witnesses
Ihe Court gave the pa ntin The privilege OF having
IL changed to Rensselaer, rather than Albany Ii he
elected. His counsel drew an order changing it W
Rensselaer,, when was plain, common sense ex-
cording TO the anldavits used by him, his counsel
expressed "bare preference or, in other words,
che was willing to signify his preference to Rensse
laer over Albany.o And IL appears to me
that with great propriety Judge Brady there
upon stated that the plaintin7s counsel had
Rensselaer,. 1t Is difficult to see what else he
could have stated and at any rate other court Is
competent to correct the order which he has thus
settled on hearing OF both parties. part Of the
reef asked for IN the second motion Is stay OF any
proceedings by the paintn in the First Judicial dis
correct In my views that the place OF trial Is changed
10 Rensselaer, then must assume that the courts oil
that district Will not act where they nave urisdc-
ton III they dlfer from me and hold that the place
OF tral Is still In New York, and that they have
urlsdlction the decision In the two conflicting views
VIII have to be made by higher tribunal
An order must be entered setting aside and vacat.
Ing the order made ut Special Term, before " r.
Justice Barnard December 20, staying proceedings,
win ten dollars costs. And also an order must be
Mr. justice Barnard the same day, requiring the de-
PENDANTS to show cause, &c, and the stay meantme
with ten dollars costs motion. And these orders
Will be entered in Rensselaer,.