Goepel v. Robinson Machine Co.

Ingraham, J.:

This motion was denied upon the ground that the relief here sought had been refused by this court, as a clause granting this portion of the motion was stricken from the order of the Appellate Division when the order vacating the warrant of attachnient was reversed. The learned court at Special Term was mistaken as to the reason why this clause was stricken from the. proposed order of this court. Upon that appeal it did not appear by the record that the property levied on under the warrant of' attachment had been released from the levy and returned to the defendant, and as that appeal had to be decided upon the record it was quite improper to insert in the order a provision based upon a fact which did not appear upon the record, but which had to be shown by affidavit. The proper proceeding was to make a motion for what was in effect a restitution of the right lost by the plaintiff in consequence of the erroneous provision, of the order, appealed from.- ■ .The defendant had no notice of such a motion, except so far as it w'as contained in the notice of settlement of the order which contained the provisions for restitution, and as the defendant objected to the inclusion of that provision in the order, it was stricken out as not tlaén properly before the court. The motion should not,' therefore, have been denied upon the only ground upon which the learned judge at Special Term based his decision.

The: defendant, however, takes the further objection that the Special Term had no power to entertain the motion, but. it should have been made at the Appellate Division, and bases this contention upon section 1-323 of the" Code of Civil Procedure which provides that ‘when a final judgment or order is reversed or modified, upon appeal,.the appellate court, or the general term of tlie same court, as the case may be, may make or compel restitution of. property, or .of a right, lost by means of the erroneous judgment or order.; but Hot so as to affect the title of a purchaser in good faith and for value.” In Mossein v. Empire State Surety Co. (117 App. Div. 820) it was held by the second department that this provision which authorized an appellate Court to make restitution did hot affect the inherent jurisdiction of the Special Term to order restitution, but ivas simply á grant of .the like power which was inherent in the court at Special Term to the appellate court, which, reversed the order or judgment appealed from. As this prescribed a rule of practice, we think we should follow the second department and affirm the right of the Special Term to entertain an application for restitution where a right has been lost to a party'' to an action or special" proceeding by virtue of an order which subsequently upon appeal was reversed; but I fully agree with the second. department. This provision granting power to the appellate, court is general, applying to the .Court of Appeals as well as to the several branches of the-Supreme Court authorized to hear appeals. . Without this provision neither this court nor the Court of Appeals on an original application would have power to decree restitution. ' The application would have to be made at the Special Term. It seems to me that this authority, which is. permissive merely, was intended- to confer upon appellate courts the'same power that had always resided in and .been exercised by the court of the first instance. It is to me clear that it could' not have been the intention of the Legislature to take away the jurisdiction of the Supreme Court to enforce its own orders or to correct any mistake that has been made in consequence of an erroneous order or judgment where the erroneous order or judgment had been reversed by an appellate court. When the appellate court was not in session, no matter what necessity there was for judicial action, no relief could" be granted until the appellate court reconvened and the motion could there be made.

I think the Special Term, therefore, had power to entertain the application, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson, P. J., McLaughlin and Scott, JL, concurred; Houghton, J., dissented.