77. Returning.]- An order, if made by a proper authority, and folioed and seasonably served, is not to be got rid of by returning it, with objections to its contents, or the manner of service, or the inadequacy of notice of entry. Relief against its contents is to be sought by motion, or appeal.

The manner of service is adopted by the serving party at his peril; and the attorney for whom it is intended, by returning it, only acknowledges that, notwithstanding the informality of service, it came to his hands.

Defects in the notice of entry are ground for claiming that the time to appeal was not limited.

78. Temporary suspension.]— An application to suspend the effect or operation of an order, pending appeal from it, is in effect an application to modify the order, which should be made, to the judge who granted the order.

79. Vacating.]- The rules governing an application to vacate, which grow out of the facts as to the place where and the court or judge before whom the order sought to be vacated was made, have been stated in connection with motions.62

The power of a court or judge to vacate an order made without jurisdiction has been disavowed in some cases,63 but without due consideration. It is clear that it may set aside such orders as were made before the want of jurisdiction was discovered. The objection to assuming power to award costs on a motion to vacate, for want of jurisdiction, depends on a different principle. If it has no jurisdiction of the person, and it cannot have if it has no jurisdiction of the subject, it cannot award costs on such a motion, except it may be against an attorney, being its own officer, for misconduct.

And there is no reason why it should not exercise the inherent power it possesses over its own records, to strike from them an order which it has made without jurisdiction, if application be made by any party aggrieved, and on notice to every party entitled to be heard on the question. Nor is this power confined to the

62 See particularly, pages 91-94 (above).

63 In New Orleans Mail Co. v. Flanders, 12 Wall. 130, it is said that, in general, it is irregular for a court having no jurisdiction to make any order other than an order to dismiss.

64 Id.; Kamp v. Kamp, 59 N. Y. 212.

court. A judge who, after granting an order, finds for instance, that one of the parties is related to him within the disqualifying degree, so that the order is absolutely void, ought not to leave it outstanding, whether it may have been entered or not, but should revoke it.

An application to vacate an order, because of neglect to enter it, may often be properly denied as unnecessary; but the court having granted an order has undoubtedly the power to grant such an application, if the order be one that ought to be entered, and the statute gives express power to a judge to revoke his order made out of court." 65

80. Vacating an order made in one's own favor.]- A party who has inadvertently taken an order which embarrasses his own proceedings may apply to vacate it, and the court, under its power of amendment, may grant relief.

66

81. Appeal. When it lies.]— Under the New York statute, which defines the cases in which appeals lie from orders, the first question to be asked in determining whether the unsuccessful party has a remedy by appeal, is to ask whether the order falls within the categories of the statute, consulting in connection therewith the provision of statute, if any, authorizing the order in question, for the right of appeal is sometimes affected by its terms.

67

In applying such statutes, the following general principles are a guide:

An appeal from an order does not lie as of right to the Court of Appeals, except from a final order in a special proceeding, or an order granting a new trial on exceptions.68

69

An order made on consent or on default is not appealable.

65 N. Y. Code Civ. Pro., § 1304.

66 Dietz v. Farish, 43 N. Y. Super. Ct. 87. Same principle in the case of a notice of appearance served by mistake. Hunt v. Brennan, 1 Hun, 213; Dillingham v. Barron, 26 N. Y. Supp. 1100. So, in case of entry of a final judgment. Hatch v. Central Nat. Bank, 78 N. Y. 487.

67 As to appeals from an order of the court at Special Term or Trial Term, see N. Y. Code Civ. Pro., § 1347.

As to appeals from the Appellate Division to the Court of Appeals, Id., § 190, subds. 1 and 2.

68 Van Arsdale v. King, 155 N. Y. 325, 49 N. E. Rep. 866.

69 Dawson v. Parsons, 74 Hun, 221, 26 N. Y. Supp. 327.

70 Matter of Peekamoose Fishing Club, 5 App. Div. 283, 39 N. Y. Supp. 124; Matter of Radam Microbe Killer Co., 114 App. Div. 199.

The fact that an order is discretionary does not prevent an appeal to the Appellate Division if it affect a substantial right,71 for the discretion of the court may be exercised by the full bench, and they may make a fresh order, such as they hold should have been made below.

An order made in a case where the court or judge has a discretion, is not on that account non-appealable, if there was an abuse of discretion, or a refusal to exercise it for a supposed want of power or jurisdiction.

The rule that an order which affects a substantial right is appealable, is liberally construed to sustain appeals to the Appellate Division.

82.

-ex parte order.]- An ex parte order, whether by the court or a judge, is not appealable.72 The remedy by appeal is only obtained indirectly, by moving on notice to vacate; and, if denied, appealing from the order of denial.

83. order not entered.]- An order, whether by court or judge, not entered is not appealable. The party desiring to appeal must enter it if the other party does not.

73

84. order of judge.]— An order made by a judge on notice, as distinguished from a court order, if made in an action, may be appealed from; 74 although the party may, if he prefer, first move to vacate, and then appeal from a refusal. The party obtaining the order may be compelled to enter it, and file the papers upon which the order was granted.75

71 Thus, for instance, if the conditions imposed by a discretionary order in a matter resting in the favor of the court or judge are too severe, the discretion exercised may usually be reviewed on appeal to the Appellate Division. 72 Matter of Reddish, 47 App. Div. 187, 62 N. Y. Supp. 261; Campbell v. Brock's Com. Agency, 38 App. Div. 137, 56 N. Y. Supp. 540.

73 Matter of N. Y. C., etc., R. R. Co., 60 N. Y. 112; Matter of Callahan, 66 Hun, 118; Murray v. Hathaway, 26 N. Y. St. Rep. 53. That there is at the foot of the order a written direction of the judge to enter it makes no difference. Whitaker v. Des fosse, 7 Bosw. 678. But where an appeal has been argued without objection or suggestion that the order has not been entered, the court will not assume that it has not been entered, but will decide the appeal on the merits. Id.

74 Code Civ. Pro., § 1348.

75 Code Civ. Pro., § 1304.

85. Waiver of appeal.]—If a party attempts to enforce, or accepts the benefit of, a provision in his own favor, contained in an order, other parts of which are unsatisfactory, he thereby waives the right to appeal from the unsatisfactory parts, provided the provision in his favor is connected with or dependent on such other parts.76

But if there is no inconsistency between his taking or claiming the benefit under one part, and objecting to the other part, there is no waiver.

Thus if an order grants a favor to his adversary on payment by the latter of costs, acceptance of the costs ratifies his adversary's right to the favor, and precludes an appeal."

But if a favor is granted to his adversary, and the order granting it imposes costs to be paid by the adversary to him absolutely, and not as a condition, acceptance or enforcement of the costs does not preclude an appeal.78

So on the other hand, if an order gives less than the motion claimed, there is no necessary inconsistency in claiming what is given, and appealing as to that which is not given.79 Otherwise, of course, if what is given were conditioned on stipulating or consenting to accept it as all.

IX. ENFORCING AN ORDER.

86. Various modes.]- The various remedies for the enforcement of an order are:

1. As to payment of money- an execution against personal property;

2. If the case is one in which execution cannot issue, and in some cases where it could issue (viz., where the money has been adjudged to be in possession of the party, so that willful disobedience is shown) -- proceedings to punish for contempt;

3. If the disobedience consists of non-payment of costs a stay of the party's proceedings till paid.

The two latter of these will be noticed in due course in later chapters.

76 Driscoll v. Downer, 55 Hun, 534, 9 N. Y. Supp. 129; Morris t. Thomas, 80 App. Div. 47, 80 N. Y. Supp. 503.

77 Platz v. City of Cohoes, 8 Abb. N. C. 392.

78 Matter of Water Com'rs of Amsterdam, 36 Hun, 534.

Availing oneself of delay granted by the condition of an order, held to preclude appeal. Weichsel v. Spear, 47 N. Y. Super. Ct. 223. 79 See Matter of N. Y. & Harlem R. R. Co., 98 N. Y. 12, 18.

87. Order requiring payment of money.]- Under statutes in New York in harmony with the changes in the law of contempt, costs, or any other sum of money directed to be paid by an order, may be collected by execution against personal property,80 if not paid within the time fixed for that purpose by the order; or if no time be so fixed, then within ten days after service of a copy of the order.

This power is not wholly dependent on the statute. A court of record, having power to order the payment of money, has power to direct the sheriff to collect it by execution.81

The practice of collecting motion costs or money directed to be paid by an order, in this manner, does not, however, extend to costs of motion for judgment,82 or of an order sustaining or overruling a demurrer.83 The reason is that these costs are costs upon judgment, not mere motion costs, and should be included in the judgment.

88. Liquidation and demand.]-When costs are awarded in favor of the unsuccessful party, as the condition of granting a favor to the other, the latter must seek the former, or his attorney, and tender them.84 If, where the sum is not liquidated by the order, the former demands a larger sum than the latter tenders, the latter should demand the items, and if they are refused, or if they are excessive, may refuse to pay until the bill is taxed.s

80 N. Y. Code Civ. Pro., § 779.

85

$1 Jones v. Morehead, 3 B. Mon. (Ky.) 377, 385. In a suit between partners a final decree was entered distributing the assets, and allowing a fee to a commissioner who had made a statement of account, which was directed to be paid by one of the partners. He failed to pay it, and, being a nonresident, execution was issued against his estate. He prosecuted a writ of

error.

MARSHALL, J. The execution "seems to have been the only effectual mode of enforcing the order; and although the more regular and appropriate mode of enforcing incidental orders made in chancery is by attachment, yet as such an order as that now in question is in substance a decree, the chancellor may in his discretion resort to the fi. fa., which is given by statute upon decrees, and that in this case there was no abuse of discretion." Affirmed on this point, reversed on others.

82 Wesley v. Bennett, 6 Abb. Pr. 12 (motion for judgment on the pleadings). Carroll v. Frazee, 2 How. Pr. 93 (judgment granted on motion therefor, as in case of nonsuit).

83 Mora v. Sun Mutual Ins. Co., 13 Abb. Pr. 304; s. c., as Moza v. Sun Mutual Ins. Co., 22 How. Pr. 60; and see Palmer v. Smedley, 13 Abb. Pr. 185. 84 See paragraphs 39, 40, pp. 230, 231, supra.

Sutherland v. Sheffield, 2 Wend. 293, as explained in Hoadley v. Cuyler, 10 id. 593 (so held under old practice of attachment for contempt); s. P., People r. Tweed, 63 N. Y. 202.