The appellant moves that he be permitted to apply to the Appellate Division to re-settle an order made by that court so that it may recite the particular questions of fact upon which the decision was made. The appeal in this court has not yet been heard. An application for re-settlement already made to the Appellate Division was denied in the following memorandum: "The motion to re-settle is denied, an appeal having *Page 573 been taken to the Court of Appeals, that court having recently held that this court has no power to re-settle an order after appeal without leave of that court."
We do not question the power of the Appellate Division to re-settle its order in such circumstances without leave from us. It is a power repeatedly exercised in practice and repeatedly recognized in our decisions (Birnbaum v. May, 170 N.Y. 314;Health Department, N.Y. v. Dassori, 159 N.Y. 245). We have questioned the power to change an order when we had already reviewed it and the remittitur on our decision had been filed in the court below (Matter of Craig, 218 N.Y. 729), but that is not this case.
The motion is, therefore, denied, without costs, on the ground that the permission asked for is unnecessary.
CHASE, COLLIN, CARDOZO, POUND, McLAUGHLIN and CRANE, JJ., concur.
Motion denied.