Ellis v. Hearn

Clarke, J. :

This is an appeal from an order made at “ Special Term of the Supreme Court * * * . held at Chambers thereof in the County Court House,’5 setting aside a verdict and granting" a new; trial. The order was made by the trial judge. The action was brought for rent reserved by two leases of real estate and upon a contract made at the closing of title for the sale of said real estate, and tlie question in litigation, was whether certain rents were paid in advance at the beginning of the quarter or paid at the end qf the quarter for previous rent. The respondent had a witness under subpoena whose testimony was material upon that point, and who in fact was the only witness that could testify to the facts with knowledge. He was taken sick, . When the ease was called for trial a doctor’s certificate was produced and a motion was made for an adjournment, which was denied, and the case set- for two q’clock. tlie _ same day. At two o’clock the motion for a postponement was again denied, and the trial proceeded and resulted in a direction of a verdict for the piaintiff. A motion was thereupon made for a new trial upon all the grounds stated in section 999 of the Code of Civil Procedure, and upon the further-ground of surprise in the non-appearance of the witness Kieley. The motion was denied and an order was entered, but it is alleged in the moving affidavit that the trial justice thereupon stated1 that- if the facts in connection with the testimony of Kieley were subsequently brought to liis attention in the form of a motion he Would consider the said motion. He thereupon directed both parties to the action to proceed to investigate the facts as to the exact amount of rent which -had been previously paid on account of'said leases, and to this end that the books of all parties be examined, and that motion papers stating the result be prepared and presented to him. The answering affidavit expressly statesThe learned justice stated that if Kieley had paid his rent in advance, as contended by the defendant, that .that fact could' be easily ascertained from Kieley himself j and a motion might be made to the court for a retrial of the cause if it appeared that said Kieley had actually paid the rent of said premises in advance and could prove the same. There was a suggestion made by the learned trial Sjudge that the plaintiff or deponent [plaintiff’s attorney] should ¡submit all or any of the books and papers which the- plaintiff had, (showing how and when the payments of the rent by the said Kieley had' been made.”

In accordance therewith, an investigation -of the hooka Was commenced ; but after allowing the defendant to look at \the hooks covering .a couple: of years, the plaintiff refused to allow, any further investigation. Whereupon, an order to show cause was j obtained from the justice who had presided at the trial, returnable before him, for a rehearing of the motion made at the close of said trial. Such rehearing was subsequently had and thereupon the motion was granted, the verdict and judgment were set aside and a new trial was granted, the order.stating “the said justice having allowed a reargument of said motion so made at the close of the said trial * * * and in furtherance of justice.”

So far as the motion papers asked for, and the order appealed from purported to grant, a reargument of the motion made at the close of the case to set aside the verdict and for a new trial upon the grounds stated in section 999 of the Code of Civil Procedure, I do not think that it can be sustained. That motion is based “ upon exceptions, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law.” It must be made upon the judge’s minutes “at the same term.” If an appeal is taken it must be heard upon a case prepared and settled in the usual manner. The motion was made at the same term, was denied, and an order entered, and the term expired.

The rights of the several parties were then fixed. The right of appeal existed. That motion was based upon the record of the case as presented; and if that record disclosed error it was available and a reversal could be obtained by the ordinary method and practice prescribed. If the record did not contain error, there was no ground for granting the motion in the first place, and no ground could thereafter be supplied to justify a reargument.

We shall, therefore, treat the order as one granting a new trial upon the ground of surprise. This is one of the grounds provided for in section 998 of the Code of Civil Procedure, and it is expressly provided that upon such a motion it is not necessary to make a case. Section 1002 provides that “ in a case not specified in the last three sections, a motion for a new trial must in the first instance be heard and decided at the Special Term.” Reading this section in connection with section 998, it follows that a motion for a new trial upon the ground of surprise must in the first instance be heard and decided at the Special Term.

The order to show cause having been granted by the judge who presided at the trial and made returnable before him at chambers, the parties appeared and submitted their papers and affidavits, and argument was had, without any suggestion of irregularity upon the ground that the' proceeding was not before the Special Term appointed to dispose of litigated motions; and the order entered upon the motion is entitled: “At a Special Term of the Supreme Court * * held at Chambers thereof- in the County Court House.”.. I think the plaintiff thereby waived the question of regularity, and that it is not available, being raised for the first time upon appeal.

The power of the Supreme Court over its judgments is inherent, not derived from or Controlled1, by statutory or Code provisions. In Donnelly v. McArdle (14 App. Div. 217), three years and eight months after the entry of the judgment, and after two motions had be.en made and denied for a new trial, the plaintiff,, Upon a new set of papers, obtained aii order to show cause from the trial judge why the case should not be reopened upon the ground of surprise and a new trial had. Hr. Justice O’Brien, Writing the prevailing opinion Upon the appeal to this court, said: “ We all agree that the court had power to grant the motion, and that such power was not dependent upon or limited by the Code, but is inherent in the court. ( Vanderbilt v. Schreyer, 81 N. Y. 646; Ladd v. Stevenson, 112 id. 325.) In the .latter case it was isaid: ‘ The whole power of the court to relieve from judgments taken through “ mistake, inadvertence, surprise or excusable neglect ” is not limited by section 124, but in the exercise of its control over its own judgments it may open them upon the application of any one for .sufficient reason in the furtherance of justice. Its power to do so does not depend: upon any statute, but is inherent, and. it would be quite unfortunate if it did not possess it to the fullest extent.’ And in; speaking of such power, the court in Vanderbilt v. Schreyer (supra) said; ‘ There aré so many occasions for its exercise that it should not be curtailed. ; Whether the power shall be exercised in any case rests in its discretion, with the exercise of which this cohrt will not .ordinarily interfere.’ ”

■ By Code provisions and rules of court,, the exercise of the general powers conferred upon the Supreme Court is distributed among its justices- out of court, its Trial and Special Term parts, its Appellate Term and its Appellate Division. The orderly .administration of justice requires that the practice as governed by Code and. rules should he followed. Irregularities in practice, however, may be waived. I do not think that the jurisdiction of the Supreme Court to entertain the motion now under consideration and grant the relief sought is affected by the question of in what room in the county court house the judge making the order, entitled at the Special Term, sat, provided that the parties were before him with opportunity to present their papers and their arguments, had a fair hearing and submitted the question for decision without raising the question. Where it appears, as it does in the case at bar, upon the statements in the affidavits upon both sides, that this was a motion the possibility of which was contemplated and suggested by the learned trial judge, and where he has made an order which recites that it was granted in furtherance of justice, we should not interfere therewith.

What appellant did object to upon the hearing was that a case should have been made, and that as no case had been made, the court could not entertain the motion; but, as pointed out, a case is not required upon, the motion for a new trial upon the ground of irregularity or surprise. The making of a case under such circumstances would be an idle formality. The motion is not based on rulings at the trial and the admission and exclusion of evidence. The court directed a verdict because there was no evidence to the contrary; and the reason there was no evidence was because of the unexpected absence of a.material witness by whom the only evidence could have been given. The non-appearance of an expected witness furnishes good reason for the granting of a new trial on the ground of surprise. (Tilden v. Gardinier, 25 Wend. 663; Cahill v. Hilton, 31 Hun, 114; affd., 96 N. Y. 675; Smith v. Lidgerwood Mfg. Co., 60 App. Div. 467.)

Under the circumstances presented by this record, the order appealed from should be affirmed, with ten dollars costs and disbursements.

Laughlin and Scott, JJ., concurred; Ingraham and Houghton, JJ., dissented.