This, action was commenced on the 18th of March, 1891. The complaint alleged that the plaintiff and defendant had been partners since 1887 in' the business of buying and selling scrap iron, etc., under the name and style of M. Donnelly & Co.; that in November, 1889, the defendant having charged the plaintiff with mismanagement of the business and threatening to dissolve the firm,-the plaintiff made a bill of sale to the defendant of all the stock in trade and property of every description belonging to the copartnershipthat such paper was not intended to be an absolute transfer of the property in' question to the defendant ;■ that after the execution of the bill of sale the plaintiff proceeded to dispose of the assets in the usual course of business, realizing a good profit thereon; and that no accounting between the parties had ever been had, but that the defendant had taken possession of all the assets under and by virtue of the bill of sale.
The complaint also alleges, as a cause of action, the making of an agreement subsequent to the bill of sale between the plaintiff and the defendant with respect to new dealings and transanctions under the firm name and style of P. J. McArdle ; that this business had become large and profitable, but that on the 17th day of March, 1891, the defendant had taken forcible possession of the assets and property of the firm, and had, by force, excluded the plaintiff from further participation in the management of the business.
The complaint demanded judgment that the copartnership be dissolved ; that the bill of sale be declared to be abandoned and of no effect, and that an accounting of all the partnership dealings between the parties be taken under the direction of the court, etc.
The answer admitted the copartnership, denied that any capital whatever was contributed by the plaintiff, and alleged that all the *225capital was contributed by the defendant. It further alleged mismanagement of the business by the plaintiff, and the jeopardizing of the capital which the defeudant had invested, and that, therefore, the defendant was obliged to take possession of the business; and that the bill of sale was made' by the plaintiff of his own free will, etc.
The action came on for trial at Special Term in February, 1892. The plaintiff was the only witness examined, and during the course of his examination he testified in respect to certain goods which he stated were obtained by the firm half way dishonestly, and that it was understood between him and the defendants that they should not be entered upon the books of the concern. The witness testified that large profits had been derived from this part of the business. He was asked whether it was the principal part of the business, and he stated : “No, it was not the principal part; there are some dishonest people, and those people would come in and say I can let yon make some money, and, of course, we were ready.” Further testimony was given by the witness upon this subject to the effect that all the goods procured in this dishonest way, except such as were sold separately, had been mixed up with the other goods of the firm and sold together, and that there were only two or three cases where such dishonest goods were not mixed up with the others.
Hpon these facts being disclosed, the court held that, the transactions being dishonest, a court of equity could not grant any relief, and dismissed the complaint, without costs, and the plaintiff’s attorneys severed their connection with the case. The plaintiff retained other attorneys in place of those who had retired, and application was then made to the justice who had tried the case for an order tO' show cause why the same should not be opened and further testimony introduced. This application was denied. The plaintiff’s attorneys then served a notice of motion, returnable on the 30th of March, 1892, before the justice who had tried the case for leave to open the case upon the ground that the irregular transactions which appeared on the trial formed but a small portion of the dealings in the copartnership between the plaintiff and the defendant, and that the withdrawal of the plaintiff’s attorneys, and their summary abandonment of his case, were without his consent and acquiescence, and . *226without any prior potification to him, or conference with him by said attorneys, and he was utterly unprepared therefor.
On the 31st of March, 1892, the findings of fact and conclusions of law were signed by the court, and upon the same day judgment was entered dismissing the complaint, without costs.
On the 12th of April; 1892, an order was entered dismissing the motion for leave to open the case, upon the grounds that such motion had been made without leave of the court, and after leave had been refused by the denial of the .order to show cause-why the relief sought by the motion should not be granted.
Thereafter the plaintiff procured another attorney, who, on the 12th of December, 1892, brought an action in the Court of Common Pleas, the complaint containing substantially the same allegations as those:contained in the complaint in the action above referred to in the Supreme Court. The answer, amongst other things, pleaded the action in the Supreme Court' and the judgment entered thereon on the 31st of March, 1892:. This action came on to be tried in April, 1894, before a judge of the Court of Common Pleas, who, on the. 31st of July, 1894, dismissed the complaint on the merits upon the ground that the judgment in the Supreme Court had finally adjudged and determined the matters set forth in the complaint, and that the plaintiff was barred and precluded from maintaining an action.
On the-18th of August, 1894, judgment was entered, and from that judgment in September, 1894, the plaintiff appealed to the General Term of the Court óf Common Pleas. This appeal seems never to have been heard.
On the 21st of December, 1894, the plaintiff made a motion in the Supreme Court, before the justice who tried the cause, to resettle and- amend the judgment entered oh the 31st of March, 1892, ntmo pro inmo, by inserting a provision in it to the effect that the dismissal of the complaint was not on the merits and was without prejudice to another action for the same relief. This motion was denied by an order entered on the 14th of January, 1895, hut without prejudice to any application the plaintiff might be advised to .make to reopen the original judgment or to amend the same.
On the 6th of November, 1895, the plaintiff, upon a new set of papers, obtained an order to. show cause why the judgment thereto*227fore entered in this case should not be set aside and wliy the case should not be reopened and the trial of the action proceeded with from the point where the same was interrupted by the dismissal of the complaint, and why a new trial thereof should not be had.
The grounds of the motion were substantially those wdiich had been stated upon the previous motion above referred to, although the same were considerably amplified. Thereupon, on the 16th of December, 1895, an order was granted vacating the judgment and directing a new trial on payment by the plaintiff to the defendant of the costs which had theretofore been incurred both in the Supreme Court and in the Court of Common Pleas. From this order the present appeal is- taken.
It is urged by the counsel for the appellant that the court at Special Term had no power to vacate the judgment and order a new trial upon the ground that, under sections ?24, 1282 and 1283 of the Code of Civil Procedure, such a motion must be made within one year after notice of the judgment, order or other proceeding which it is sought to vacated It has, however, been settled by the Court of Appeals that the power of the Supreme Court. to open defaults, to set aside or vacate judgments, and to permit pleadings to be served in furtherance of the ends of justice is unquestionable, notwithstanding the limitations of the Code, and that the power does not depend upon the sections of the Code, but exists independently of them, and inheres in the very constitution of the court. (Vanderbilt v. Schreyer, 81 N. Y. 646 ; Ladd v. Stevenson, 112 id. 325.)
The court, however, in the exercise of this power, must necessarily consider the limitations which have been placed upon its action by the provisions of law and the policy which has obtained in the statutes of having a day of repose not only as to the assertion of rights which have not been passed upon, but also in respect to rights which have been adjudicated upon and settled by the courts. It is upon the ground of surprise, mistake, fraud or undiscovered evidence that this power of the court is usually invoked. In such case a party is always required to move with diligence. In the case at bar there is no pretense of undiscovered evidence, of fraud or mistake, the ground of surprise simply being asserted. The plaintiff here rested quiet for nine months after his defeat on the motion to amend the *228judgment; and it was only after this lapse of time that he became surprised at the result of the trial and the action of the attorneys, occurring three years and a half before And after the same relief had been twice refused, an order is made vacating the judgment and granting a new trial, and this, long after the right of appeal had been lost and after repeated efforts had been unavailingly made to reopen the trial, based upon the very same grounds upon which the motion is now granted.
It has- been suggested that the learned judge did not pass upon the merits of the application when he refused the order to show cause. There is no ground for this assumption. An application for an order to show cause was made, considered by the judge and refused; and the reason for -the denial ©!’ the subsequent motion was because a motion for leave to renew had been made and denied — clearly showing that the learned judge intended to be understood as having denied the application for an order to show cause after examination.
It seems to us, taking all these things into consideration, that the court was not justified in unsettling the rights of these parties. It appears, as above stated, that no proceeding whatever was taken on the part of the- plaintiff for nearly ten months prior to the making of this motion. It has been held that where a party had proceeded with much greater diligence than is ■ here shown, and had lost his right of appeal by mistake, the motion to vacate a judgment upon the ground of irregularity in its entry could not be resorted to in order to give a party a right of appeal which he had already lost. (N. Y. City Bapt. Mis. Soc. v. Tabernacle Church, 10 App. Div. 288.)
We are of opinion, therefore, in view of these considerations, that it was error to grant the new trial, and that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, j., concurred.