VII. REHEARING.

168. Rehearing and renewal distinguished.]-A rehearing is merely a re-argument (preceded, if a decision has been had, by an opening of the decision for the purpose), and the re-argument proceeds upon the same notice and moving papers upon which the original argument was had.95

If the time to move is limited and has elapsed, the court, even though it be a case where it could not enlarge the time, and therefore could not grant leave to renew, may allow a rehearing of the original motion.96 But the power to allow a rehearing will not be exercised, after the time to appeal from the order has expired, even though the error of law is disclosed for the first time by the subsequent decision of the highest court.97

If it is desired to bring in new facts, new parties, or a new demand for relief, a rehearing or a re-argument is not the remedy; but there must be a renewal, that is, a new motion, proceeding upon a new notice, and (if new facts are to be adduced, or new parties notified) upon new or additional motion papers.

98

Leave to renew does not confer a right which is vested in such a sense as to escape the effect of a repealing statute framed before the second hearing, and which alters the law upon which the first motion was based, and therefore the second motion is to be governed by the statute in force when it is made, the same as if it were the first motion of its kind.99

94 A motion to be relieved from an order on the ground that the same was taken through mistake, inadvertence, surprise, or excusable neglect (Code Civ. Pro., § 724), is not an application for a rehearing, but is in part an independent proceeding, maintainable without previous leave of court. Matter of Blackwell, 48 App. Div. 230, 62 N. Y. Supp. 793.

25 Conlen v. Rizer, 109 App. Div. 537, 540, 96 N. Y. Supp. 566; Seletsky v. Third Ave. R. Co. 44 App. Div. 632, 60 N. Y. Supp. 405.

Wright . Terry, 24 Hun, 228 (rehearing denied where it was sought upon a new and amended case).

Webb t. Groom, 6 Robt. 532 (rehearing denied where it was sought to introduce subsequent facts tending to establish the fraud on which the order of arrest had been originally obtained, but vacated upon the former hearing). Where the motion had been originally denied upon a preliminary objection, upon its rehearing the court considered an affidavit submitted in opposition. Matter of Crane, 81 Hun, 96, 30 N. Y. Supp. 616.

96 Bowman v. Sheldon, 5 Sandf. 657.

97 Klipstein v. Marchmedt, 39 Misc. 794, 81 N. Y. Supp. 317: Re Silliman, 38 Misc. 226, 77 N. Y. Supp. 267; Megary t. Shipley, 72 Md. 33.

98 See Butterfield v. Bennett, 8 N. Y. Supp. 910, 30 St. Rep. 302; Conlen v. Rizer, 109 App. Div. 537, 540, 96 N. Y. Supp. 566 (order denying motion to renew on new facts is appealable).

99 People v. Cohocton Stone Road, 25 Hun, 13.

169. Rehearing, when allowed.] It is in the discretion of the court or judge, after having heard a contested motion, to allow a re-argument for good cause; but the only recognized ground for so doing, after decision once arrived at, is that the decision has been reached under an obvious misapprehension, by the court or judge, of the papers or of the law applicable.*

170. Mode of obtaining rehearing.]— To obtain a rehearing when not spontaneously ordered by the court or judge, a motion therefor should be made before the court or judge before whom the original hearing was had (if in the first district, before Special Term, Part I, and the justice there presiding will refer the motion to the justice who heard the original motion); and, if granted, the motion (unless otherwise directed) stands for

3

1 This principle does not apply to a final order in a special proceeding; nor to such proceedings in an action as may result in an order, but in reality are decisive of the controversy. See paragraph 156, supra; Aldridge t. Walker, 73 Hun, 281, 26 N. Y. Supp. 936.

2 Bolles t. Duff, 56 Barb. 567.

In Matter of Nat. Gramophone Co. 87 App. Div. 76, 83 N. Y. Supp. 1087, it was held that the Special Term, after confirming the report of a referee, and directing a payment by a receiver to his attorney, may grant an order to show cause why such payment should not be stayed and for other relief, and that upon the return thereof, it may properly direct a re-submission of the whole matter and vacate its previous order for payment.

"There are," says Pearson, J., in In re May, ex parte House (Chan. Div., 1883), 49 L. T. R. (N. S.) 770, "two well-known matters of practice which are too well settled in this court for any one to dispute them. One is that no judge of first instance can rehear an order made by another judge, or even by himself after it has been passed and entered; and the other is, that if under any circumstance it is right and proper that a matter which has been disposed of should be reheard, that rehearing can only take place upon leave being obtained from the court according to the regular forms and practice of the court upon such materials being produced to show the court that there may have been, at all events, a miscarriage of justice on the former occasion.“ In Banks v. Carter, 7 Daly, 417, Daly, C. J., said: "A reargument is granted only where some question decisive of the case and duly submitted by counsel was overlooked, or where the decision is in conflict with an express statute or a controlling decision to which attention was not called by counsel (Curley v. Tomlinson, 5 Daly, 283)."

For illustrations of the mode in which this discretionary power is commonly exercised, see Matter of Crane, 81 Hun, 96, 30 N. Y. Supp. 616; Averill v. Barker, 44 N. Y. St. Rep. 542; Price v. Price, 22 Abb. N. C. 299, 2 N. Y. Supp. 796; Webb v. Groom, 6 Robt. 532; Merrill v. Merrill, 11 Abb. Pr. (N. S.) 74; Taylor . Grant, 36 N. Y. Super. Ct. 259; Coleman v. Livingston, id., 231; Butterfield r. Radde, 40 id., 169; Produce Bank v. Morton, 42 id., 124; Krom v. Levy, 6 Supm. Ct. (T. & C.) 253; Guidet v. Mayor, etc., of N. Y., 37 N. Y. Super. Ct. 124; Weston r. Ketchum, 39 id. 552.

3 There is a dictum in Matter of Blackwell, 48 App. Div. 230, 62 N. Y. Supp. 793, that an application for leave to renew may be made to the court.

hearing upon the original notice and papers, as if it had not yet been reached. Notice of motion for leave to re-argue may be combined with notice of re-argument in case leave be granted." So also of an order to show cause. 6

171. how heard.]-Where a rehearing is allowed by opening a default, the rehearing as to the party who took it must be had on the papers on which the default was taken. So also where the rehearing of a contested motion is allowed, the court should not receive additional papers in support of the motion, but a party relying on such papers must give a new notice of motion, or take an order to show cause dispensing therewith.

VIII. RENEWALS.

172. General restriction on renewals.]-A motions having been heard and decided, whether by the court or a judge, the same

4 Conlen v. Rizer, 109 App. Div. 537, 540, 96 N. Y. Supp. 566. An order denying a reargument is not appealable. Tucker v. Dudley, 104 App. Div. 191, 93 N. Y. Supp. 355.

5 In Bolles v. Duff, 56 Barb. 567, the court said: "It generally happens that the argument of the motion for leave to re-argue involves the re-argument itself. In such cases it is of course an unnecessary waste of time and labor, after granting the motion for leave, to hear counsel again on the re-argument for the bare purpose of having them again go over the same reasoning and eitations which they have addressed to the court. But where the court grants a re-argument on the ground that there is a decision or principle of law which has been overlooked, and which would have had a controlling effect, or that there has been a misapprehension of fact, without having heard counsel either as to the soundness or extent of the principle of law, or as to the controlling effect of the principle, decision, or misapprehension of facts, then the re-argument should be had in order to allow counsel to be heard on those points." Hence leave was granted for an actual re-argument because a principle of law had been overlooked on which counsel had not been heard. See also Andrews r. Cross, 17 Abb. N. C. 92.

6 See paragraph 177.

7 Knowlton v. Bowrason, 8 Cow. 135 (where the court refused to allow the party opposing a motion to open a default changing place of trial, to introduce a further affidavit showing twenty witnesses in addition to the number sworn to in his original affidavit. The court said: "The mover cannot, as of course, avail himself of his advantage to eke out the original ground of his motion by way of reply to the motion of his adversary who comes to open the rule").

8 The rule against renewals without leave does not apply to motions disposed of by default. Bowman v. Sheldon, 5 Sandf. 657; Thompson v. Erie Ry. Co. 9 Abb. Pr. (N. S.) 233.

It does not apply to a judge's order, obtained ex parte, and subsequently vacated because of the insufficiency of the papers upon which it was granted: an application for another order may be made without leave. Skinner v. Steele, 88 Hun, 307, 34 N. Y. Supp. 748.

party cannot make a fresh motion for the same or substantially the same relief, upon the same facts,10 though supported by fresh evidence, nor upon facts existing when the former motion was made, unless by leave of the court12 or judge.

12

This rule does not apply to a motion to vacate a provisional remedy based upon affidavits, after denial of a motion to vacate upon the papers upon which it was granted.13

leave.]

173. Renewal on same facts, when allowable; The court or judge by whom a motion has been denied in whole cr in part, or granted subject to conditions, has power to grant leave to renew it upon the same facts, except where it would have the effect to extend the time for making the motion after the time has passed, in a case where there is no power to extend the time.1 If there is nothing to raise a suspicion of unfairness, it is proper to grant such leave,15 as well when the first motion was denied for formal or technical defects,16 as where it was denied for insufficiency of proof, and further and sufficient evilence appears to have been since discovered.17

9 The rule does not preclude an application by a different party. See New Jersey Zinc Co. v. Blood, 8 Abb. Pr. 147, where it was held that the denial of a motion for a change of place of trial, made by one defendant, does not prejudice the right of another defendant (subsequently served with summons, and not a party to the former motion) to make a similar motion.

10 Oppenheim r. Lewis, 20 App. Div. 332, 46 N. Y Supp. 765; People ex rel. Platt. Canvassers, 74 Hun, 179, 26 N. Y. Supp. 345; Manhattan R. Co. v. Klipstein, 84 Hun, 579, 32 N. Y. Supp, 729.

Bank of Havana v. Moore, 5 Hun, 624 (affirming an order denying a second application made without leave on the same facts).

Schlemmer v. Myerstein, 19 How. Pr. 412 (where, upon denying a second application made without leave on same facts, for an attachment where the attachment granted on the former application had been vacated by another court, after argument, the court said: "The defendant is not to be continually vexed by the same application; nor are the same or different tribunals to hear and decide upon the same matters more than once").

The rule applies to motions for a commission to examine witnesses. Allen v. Gibbs, 12 Wend. 202; Dollfus r. Frosch, 5 Hill, 493.

11 Pattison v. Bacon, 12 Abb. Pr. 142, 21 How. Pr. 478; Willet r. Fayerweather, 1 Barb. 72; Lovell v. Martin, 12 Abb. Pr. 178.

12 Jay v. De Groot, 2 Hun, 205; Klumpp r. Gardner, 44 Hun, 515, 9 N. Y. St. Rep. 355; Sheehan v. Carvalho, 12 App. Div. 430, 42 N. Y. Supp. 222; Seaman v. McReynolds, 52 N. Y. Super. Ct. 543.

13 See Thalheimer v. Hays, 42 Hun, 93; Hawkins v. Pakas, 44 App. Div. 395, 60 N. Y. Supp. 1108.

14 See paragraph 4, p. 49, of this volume; White v. Monroe, 33 Barb. 650. 15 Mitchell r. Allen, 12 Wend. 290.

16 Macomber . Mayor, etc., of N. Y. 17 Abb. Pr. 35 (omission to specify irregularity in order to show cause).

Dollfus r. Frosch, 5 Hill, 493. 40 Am. Dec. 368 (motion for commission); Marvin . Lewis, 12 Abb. Pr. 482.

17 Devlin v. Hope, 16 Abb. Pr. 314.

A more favorable order, made on a renewal upon the same facts, without leave being previously asked, is not void for want of power in the court; 18 and to deny the second motion for want of power because previous leave has not been had is error.19

If the motion is made before a court held by a single judge, it should be the same judge who heard the original motion.20

He who seeks leave to renew a motion on facts which existed at the time of the original motion, should be required to show evidence as an excuse for not presenting them then, to justify the court in granting a renewal.21

18 White v. Munroe, 33 Barb. 650; Tone v. Brace, Clarke, 503; Riggs v. Pursell, 74 N. Y. 370.

19 Thayer v. Parr, 13 Wkly. Dig. 137. Compare Melville v. Matthewson, 49 N. Y. Super. Ct. 388, reversing the order granted on the second application, and holding that "under such circumstances, failure to ask for and to obtain leave to renew is ground for reversal."

Whether the mere additional lapse of time is a "new fact" for the purpose of sustaining a renewal without leave founded on delay, see Dunn v. Meserole, 5 Daly, 434, where it was held that an order denying a motion, under Code Pro., § 274, to dismiss for neglect to serve other defendants, is a bar to a new motion to dismiss for the same reason, made a year afterward, without obtaining leave to renew. Doubted.

20 Arnold v. Oliver, 2 Civ. Pro. Rep. (Browne), 457, 64 How. Pr. 452; aff'g, 4 Month. L. Bul. 50.

An error of the Special Term cannot be corrected by a motion made at another, but can only be remedied by an appeal. First Nat. Bk. of Rondout r. Hamilton, 50 How. Pr. 116. (So held, denying a motion presenting the identical questions passed upon at a previous hearing before another judge. Per curiam: "The estoppel depends not on the form of the presentation, but on the presentation without leave of the same questions once decided.") A decree of divorce will not be set aside because the motion to confirm the referee's report was first made before one judge, and renewed before another, though there is no competent evidence of leave to renew, because this is a mere irregularity, and where due notice of the motion is given, the objection should then be taken, and not allowed to remain months after the judgment. Robertson v. Robertson, 9 Daly, 44 (so laid down, but reversing the order on another ground); appeal dismissed in 81 N. Y. 639.

21 Belmont r. Erie Ry. Co., 52 Barb. 637 (where the test as to whether a motion to open an order should be granted was stated as follows: Have the parties making the motion "shown any material facts which were not presented upon the previous motion; and if they have, were they, so far as matters then existed, prevented from bringing them to the notice of the judge by mistake, inadvertence, surprise, or excusable neglect?'"

Applying such test it was held that a sufficient excuse was shown by the moving parties for not presenting their full case on the previous motion in that they were taken by surprise by the motion being greatly advanced on the calendar.

Wentworth v. Wentworth, 51 How. Pr. 289 (where the court said: "Upon a second application addressed to the discretion of the court, fresh facts or some good excuse should be furnished ").

Pattison v. Bacon, 12 Abb. Pr. 142, 21 How. Pr. 478. (Here a renewal of a motion to open a judgment taken by default was not entertained, because made on a ground of defense known to the defendant when the original motion was made, but not then stated. No excuse was offered.)