I concur with the presiding justice in his opinion,. The history of this case is there detailed. After the trial was had, which resulted in the announcement by- the -court that the complaint should be dis*229missed, and before the entry of final judgment a period of over two months elapsed. Immediately after the trial, at which the plaintiff says he was deserted by his counsel, new attorneys were retained, and proceedings were at once taken by them to enforce the plaintiffs rights. Before the judgment was entered the new attorneys made a motion, on behalf of the plaintiff, to the justice who had tried the case, upon an affidavit of the plaintiff, the stenographer’s minutes of the trial and all the papers and proceedings in the case, to reopen the trial and to allow the plaintiff to come in and give additional evidence, and to note an exception to the ruling of the court. It appears in the plaintiff’s affidavit, used upon that motion, that upon the trial which resulted in the dismissal of the complaint, his counsel abandoned the case in court; that from the time of such abandonment lie was not represented by counsel at all, and that by reason of that fact no further testimony was offered on the plaintiff’s behalf, and that no exception was taken to the dismissal of the complaint. It was also alleged that the irregular transactions which appeared on said trial formed hut a small portion of the dealings of the copartnership between the plaintiff and the defendant; that the withdrawal of the plaintiff’s attorney as aforesaid, and his "summary abandonment of the plaintiff’s case, was without his consent or acquiescence, and without any prior notification to him, or conference with him, by his attorney. Upon that application there was presented to the court substantially the same facts as those now presented, as reason for granting the application, That was before the entry of judgment, and that motion was argued and submitted to the court, and an order denying such application entered. From that order no appeal was taken, and subsequently thereto the justice trying the case filed his decision and directed the entry of judgment. From that judgment an appeal was taken, which was subsequently abandoned. Since that time the plaintiff had been endeavoring in various ways to review the decision of ■ the court upon the trial of this action by motions and actions in other courts, which necessarily resulted in defeat. He had had his day in court, and his case had been dismissed. The law provided a remedy for that dismissal, which was by an appeal, or by a motion to reopen the trial and be allowed to introduce further evidence. He had made that motion and it was denied, and from the order denying that motion he had *230not appealed. Three and a half years after the entry of judgment and the denial of his motion on the same state of facts, nothing hew in the meantime being discovered, except the fact of his unsuccessful irregular effort to review the judgment, he applies to the same court for the relief which had before been denied him, without, a formal application to renew, and without any facts explaining liis failure to appeal, either from the judgment or the order denying the motion for a new trial. Upon such new application, the defendant having lost in the meantime his right to appeal from the judgment and from the order denying'his motion for a new trial, a new trial is granted him simply because the learned judge who tried the case now thinks that his rulings upon the original trial were erroneous.
A method to review a decision of the court based upon error is provided by appeal, and nothing can be clearer than that the orderly administration of justice requires that such error should be reviewed only by appeal There are also certain recognized grounds for the granting of new trials upon facts outside of the record — suchas surprise, mistake, newly-discovered evidence and fraud or imposition upon the court, and in either case it is necessary to present to the court the facts -upon which the motion is to be made by affidavit. Where the right to a new trial is based! upon error in the decision of the court upon the trial, the application for the new trial must be made by an appeal from the judgment. Where the right to a new trial is based upon facts which do not appear on the trial, and is ■addressed to the judicial discretion of the court, such an application must be made by a motion for a new trial, generally upon a- case settled and affidavits. The plaintiff in this case had the right to resort to either of these remedies. He had a right to his motion for a new trial upon the ground of surprise, mistake, newly-discovered evidence and fraud or imposition upon the court, and he made that motion before the entry of judgment* and that motion was denied ; and from the order denying that motion no appeal was taken. The judgment was then entered. He then had the right to review the decision of the trial court by an appeal from that judgment, which appeal he took and subsequently abandoned. It would seem that, having exhausted both of his remedies for a reversal of the judgment against him, and his right to appeal both from the *231judgment and from the refusal of the court to order a new trial having been abandoned, the judgment should stand, except that upon the presentation of some new facts not before the court upon the trial or the former application leave could be obtained.to renew his application. No such new facts were presented upon this application ; and a careful examination of this voluminous record has failed to show any ground which would justify the court in allowing the application to be renewed and the judgment vacated long after the time.to appeal had expired. The ground upon which the learned judge at Special Term granted this motion is, that at last he is satisfied that his decision was .erroneous because he misconceived the effect of the evidence. It is not claimed that the evidence given by the plaintiff, upon the trial was false or a mistake ; and the only surprise alleged is, that as he was not familiar with being a witness, he was surprised into telling the truth. It is conceded that the court on.the trial had before it a correct statement of the facts. Upon those facts the court applied a rule of law which the plaintiff claims was not applicable to the particular facts proved • and the learned court, on granting this application, seems to have finally come to that conclusion.
It is not necessary for us to examine the correctness of the conclusion arrived at; nor do-1 express an opinion upon it. What is material upon this application is, that it appears that the error complained of was an error of the court in the application of a rule of law to the facts developed upon the trial of this particular, case. To remedy that error, if it existed, the plaintiff had his appeal, If by reason of surprise or excusable mistake he had been prevented from bringing out all of the facts, he had his remedy by a motion for a new trial upon that ground. He made that motion and was defeated. The order denying his motion was entered. His timetO' appeal from it expired. The sole method by which he could then review the decision of the court was on an appeal, and he was confined to that method of review. He .seems to have adopted almost every other method except the one prescribed by law. That, for some unaccountable reason, absolutely unexplained, he abandoned. Having lost his right to review by appeal either from the judgment or order denying his motion, we have now to determine whether or not the court was justified, by this order appealed from, in giving *232him a right t<b review the decision of the trial court by a new trial when he had lost that right by his failure to appeal.
We fully appreciate the motive that actuated the learned judge below, when he realized that the plaintiff had lost a substantial right in consequence of what he considered his erroneous decision on the trial of the action, and his wish to avoid, any injustice that his decision might impose upon the plaintiff. On this appeal, however, we are boundl to say whether the court was justified in exercising its discretion in granting this new trial where the application had been once before made and denied, and where the judgment had been entered, which the plaintiff refused or1 neglected to review on appeal for over three years before the making of the motion. We realize that the court in which the action is brought is given almost unlimited discretion in making amendments in actions and proceedings in order that substantial justice may be administered. There is, however, one default which the court’ is not allowed to relieve, and in that direction the discretion of the court is taken away. No court can allow to a party an extension of time to appeal from a judgment or order. No court can allow to either party a right to appeal after, the time to appeal has expired, (Code, § ,784); and it is clearly error to do indirectly what the court is expressly prohibited from doing directly.
We havé lately held in the case of New York City Baptist Mission Society v. Tabernacle Baptist Church (10 App. Div. 288) that it was error for the court to set aside a judgment as irregular where it was not shown that the irregularity had prejudiced the moving party., so as to allow a defendant to appeal from the judgment after his time to appeal had expired ; and, although in that case the failure to appeal was a mistake of counsel for the defeated party, and the court below had exercised its discretion in setting aside the judgment which had been entered in exjiress violation of the rules, if the court had had the power to grant the application, a case was presented in which that power would have been exercised. The order was reversed.. A far different question is presented here. The plaintiff voluntarily abandoned his proceeding to review the judgment and order refusing to grant him a new 'trial in the regular way, and voluntarily adopted other, methods and when those methods have been unsuccessful he asks the court *233to grant him a new trial, the granting of which, in effect, would violate the provision of the Code before cited —that his time to appeal from judgments and orders regularly made should not .be extended or his default in taking such an appeal opened. If the granting of this application can be sustained, the defeated party can, at any time, obtain a new trial upon satisfying the judge before whom the case is tried, or some other judge holding a Special Term, that some ruling upon the trial was erroneous; and the maintenance of appellate courts would then seem to be unnecessary, and no litigation would ever be at an end. This case is not an exception to the general rule because the facts are somewhat unusual, and because of the unblushing avowal of the plaintiff that part of the business conducted by this copartnership had been the bribing of agents or employees of corporations to steal the property of their employers. The sale of such stolen property by this firm, naturally induced the learned trial judge to indignantly refuse to have any participation in the division among the copartners .of the proceeds of such a business. Whether or not his refusal was error was to be reviewed, not by actions in another court, but by an appeal from the judgment.
I think it was error, therefore, for the court below to set aside this judgment and grant a new trial under the circumstances here detailed.
Yan Brunt, P. J., concurred.
■Order affirmed, with ten dollars costs and disbursements.