98

2. If the order was made ex parte, then to the judge ex parte who made it. But such an ex parte application must be promptly made, or at least before the applicant has taken any other step in the cause, or is aware of any further step taken by his adversary; 29 3. To the court in which the action is pending, on notice.1 The court have power to entertain an application on notice to vacate a judge's order made by a judge other than the one holding the court; but the court may in its discretion deny the motion on that ground, or send it before a term held by him, or consult with him upon the motion.

98 N. Y. Code Civ. Pro., § 772.

This power seems to be inherent, especially when the ground of the vacating is that the order was inadvertently made, or on a partial disclosure of the facts. For instances of its exercise, see Marks v. King, 13 Abb. N. C. 374; Ward v. Sands, 10 id. 60; Levy v. Loeb, 5 id. 157; Lilianthal v. Levy, 4 App. Div. 90, 38 N. Y. Supp. 936.

99 The statute (above cited) allowing a judge having granted an ex parte order to vacate it ex parte, is without qualification; but in practice it is very reasonably restricted as here stated. Peck v. Yorks, 24 How. Pr. 363; aff'd, 41 Barb. 547 (case of an injunction).

1 Code, § 772; Matter of Brake, 59 How. Pr. 329; Levy v. Loeb, 5 Abb. N. C. 157, 44 Super. Ct. 291; aff'd, 75 N. Y. 609; West Side Bank v. Pugsley, 12 Abb. Pr. (N. S.) 28, 47 N. Y. 368.

The Special Term of the Supreme Court has no power to make an order, on notice, in a County Court action. Edwards v. Shreve, 83 App. Div. 165, 82 N. Y. Supp. 514.

Some provisions peculiar to orders for provisional remedies, viz.: arrest, injunction, attachment, receiver, satisfaction of part of plaintiff's claim, provisional deposit or delivery or conveyance of property, and claim and delivery, will be noticed in due course.

An order of a judge for substituted service is not a provisional remedy within this qualification of the general rule. McCarthy v. McCarthy, 13 Hun, 579.

2 This rule against one judge reviewing the decisions of another, was in substance adopted in the N. Y. Code of Civil Procedure, by the clause of section 772, which provides that where a judge's ex parte order "grants a provisional remedy it can be vacated only in the mode specially prescribed by law; in any other case, it may be vacated or modified, without notice, by the judge who made it, or, upon notice, by him, or by the court;" and by the clause of section 776, which provides that "if an application for an order, made to a judge of the court, or to a county judge, is wholly or partly refused, or granted conditionally, or on terms, a subsequent application, in reference to the same matter, and in the same stage of the proceedings, shal! be made only to the same judge, or to the court. If it is made to another judge, out of court, an order granted thereupon must be vacated by the judge who made it, or, if he is absent, or otherwise unable to hear the application, by any judge of the court, upon proof, by affidavit, of the facts." In Sproull v. Star Co., 45 App. Div. 575, 61 N. Y. Supp. 404, a motion to vacate a judge's order was held properly considered at a Special Term held by another judge, where the motion to vacate had been made to the judge who made the original order, and by him sent to a reference, and his term had expired pending the report of the referee.

See also paragraph 35.

3 This was done in Madsen v. Slocovich, 4 Month. L. Bul. 84, and see paragraph 35.

But application to the court is not the mode to get rid of a judge's ex parte vacatur of his own ex parte order.1

In all these cases an application to any other judge,5 out of court or to the court ex parte, is irregular."

4. Where the obnoxious order was made by a judge on a second application, after a previous application in whole or in part unsucessfully made to another judge, it must be vacated by the judge who made it, or if he is absent or otherwise unable to hear the application, by any judge of the court upon proof by affidavit of the facts.7

34. court order.]-Unless an order of court at Special Term is absolutely voids in such sense that it may be safely disregarded, a party desiring to get rid of it by moving to vacate or modify it must apply to the court at Special Term.

If the order was made on notice the application to vacate must be on notice, otherwise it may be ex parte; but the same reasons as in the case of a judge's order, require that such an ex parte application be promptly made, or at least before the applicant has taken any other step in the cause, or is aware of any further step taken by his adversary, and the court will usually require notice.

35. court orders, at terms held by different judges.] — The judicial power of the court, as distinguished from that of a judge, is impersonal; and the authority of the court over its own process is sufficient, if unrestrained, to enable the court at a term held by one judge to amend, modify or vacate an order made by the same court at a term held by another judge, subject, however, to such qualifications as the doctrine of res adjudicata may impose.9

But the confusion resulting from the unqualified exercise of this power in courts sitting in many co-ordinate branches, has led to the adoption of a rule of judicial policy, that one judge

See paragraph 36.

5 Code, §§ 772, 776.

6 Id.

7 N. Y. Code Civ. Pro., § 776. A violation of the section is a contempt; see ld.. § 778.

8 See paragraphs 27, 36, 56, 78, 84, 87. As to void orders, see paragraph 17.

9 Corbin v. Casina Land Co., 26 App. Div. 408, 49 N. Y. Supp. 929; Selden t. Christophers, 1 Abb. Pr. 272; Belmont v. Erie Ry. Co., 52 Barb. 637.

at Special Term should not assume to review and vacate or modify an order made at a Special Term held by another judge.10 This rule is so fully settled that a violation of it may be redressed by the Court of Appeals," and Appellate Division.

It must not be overlooked, however, that the absence or inability of the judge, or his ceasing to hold office, may make a case in which the policy of the rule should cease to apply.12 Some weight, in a doubtful case is also due to the question whether the parties were fully heard on the original motion.

36.

vacating vacatur.]—If a judge, ex parte, vacate his own ex parte order, the remedy is to apply to him to vacate the vacatur, or to move anew before him, or, if leave be reserved, before another judge or the court, for a fresh original order, disclosing the facts as to previous application.13

But application may be made to the court to vacate the ex parte vacatur,13 though no appeal will lie from the ex parte vacatur.14

10 Platt v. N. Y. & Sea Beach Ry. Co., 170 N. Y. 451, 63 N. E. Rep. 532; McGorie v. McAdoo, 113 App. Div. 271, 99 N. Y. Supp. 47; Corbin v. Casina Land Co., 26 App. Div. 408, 49 N. Y. Supp. 929; Fisher v. Hepburn, 48 N. 1. 41; People v. National Trust Co., 31 Hun, 20; Kamp v. Kamp, 59 N. Y. 212, 217. In Platt v. N. Y., etc., Co., supra, it is said that it would be virtually an appeal from the Special Term to the Special Term.

Thompson 1.

This rule has no application to orders made upon default. Erie Ry. Co., 9 Abb. Pr. (N. S.) 233; Matter of Hartmann, 23 N. Y. Wkly. Dig. 128. See post, par. 38. Nor to provisions in an order inserted under a mistake or misapprehension of counsel. Price v. Price, 22 Abb. N. C. 299, 2 N. Y. Supp. 796. Nor to an application to modify an order which has proved oppressive, under leave given. Cruikshank v. Cruikshank, 30 App. Div. 381, 51 N. Y. Supp. 926.

11 Fisher v. Hepburn, 48 N. Y. 41, where, though the General Term had on the merits affirmed the interfering order of a Special Term, the commission of appeals reversed the General Term on the ground that the interfering decision was made at a Special Term held by another judge than the one who held the Special Term at which the original decision was made.

12 Oakley v. Cokalete, 6 App. Div. 229, 39 N. Y. Supp. 1001. The practice in the first judicial district, under the elaborate rules of the Appellate Division, has become settled somewhat as follows: The motion is made in

the usual way, returnable before Part I of the Special Term; upon the call of the motion calendar the purpose of the motion is stated, i. e., so as to disclose the fact that it involves a rehearing or renewal (in whole or in part, of a matter already passed upon by a previous Special Term, whereupon the justice then presiding will indorse upon the motion papers that the motion is referred to Mr. Justice (who held the previous term), and the motion will be submitted to the latter justice.

13 See par. 173 (below). And see history of proceedings in Lilianthal v. Levy, 4 App. Div. 90, 38 N. Y. Supp. 936.

13a Everett v. Park, 88 Hun, 368, 34 N. Y. Supp. 827.

14 Morehouse v. Yeager, 41 N. Y. Super Ct. 306; Code Civ. Pro., § 1348.

If a judge, ex parte, vacates another judge's ex parte order, the remedy is to apply to the former judge to vacate his vacatur or to the court, on notice, to do so, or to appeal,15 after entry, or to vacate for failure to enter. 16 The order cannot be disregarded merely on that account, unless absolutely void for want of power or the like.

37. Indirectly getting rid of ex parte order.] An order which is irregular because made ex parte, when notice was requisite, is not a bar to a motion to the court on notice for relief inconsistent with such order, for the court having power to vacate the order can make any order superseding it.17

Where such an order is allowable, the proper form of it is not a mere varying or amending of the previous order, but to say that, notwithstanding the directions contained in that order, it is now ordered as follows, etc.18

38. Vacating or modifying orders made by default.] — The restrictions on the power of one judge, whether holding court or out of court, to revise an order made by another, does not apply when the previous order was made by default; for in such case there has not been any judicial decision, within the reason of the rule.19

39.by consent.] The power of a court or judge to vacate or modify an order does not extend to orders made by consent,20 except where grounds for modifying or relieving from the consent are shown, or for setting the proceedings aside on the grounds of public policy.

But such further directions may be given as are necessary to earry the order into effect, according to its spirit and intent, or to correct a mistake.2

21

15 Swift v. Wylie, 28 N. Y. Super. Ct. 641, 642.

16 N. Y. Code Civ. Pro., § 1304.

17 Morse v. Stockman, 65 Wisc. 36, 26 N. W. Rep. 176, 178 (holding ex parte discontinuance no bar to motion on notice, to be let in as a party).

18 Prestney v. Mayor, etc., of Colchester (Eng. Ct. of App., June, 1883), 48 Law Times Rep. (N. S.) 749.

19 Thompson v. Erie Ry. Co., 9 Abb. Pr. (N. S.) 233; People v. Nat. Trust Co., 31 Hun, 20, 27; Matter of Hartman, 23 Wkly. Dig. 128.

20 Leitch v. Cumpston, 4 Paige, 476; Bolles v. Cantor, 6 App. Div. 365, 39 N. Y. Supp. 652.

40. Entry before vacating.]- The courts have sometimes refused to vacate orders of court before they have been entered." But there can be no doubt of the power of the court to do so, if no other hindrance exists. The granting of an order of court (before entry) consists of a direction to the clerk to enter the order as drawn or settled; and if the court has inadvertently or erroneously given this direction there can be no doubt of its power to revoke it in any case where it could revoke the order after entry. The practice to procure entry before moving is one of policy, not of power.

41. Motion to amend or resettle.] - A motion to amend or resettle an order or judgment (whether so as to modify in substance the decision made, or to conform the record to the decision) falls within the foregoing restrictions against interfering with the decisions of an absent judge of co-ordinate authority; although, from necessity the policy of refusing to do so is often inapplicable as against a motion to amend after a lapse of time.2

23

42. Motion on further facts.]—A motion for a further or different order on new facts, which were not in the case on the former motion, does not fall within the foregoing restrictions; although it is often proper to apply those restrictions and refuse to entertain a motion, or send it before the judge who made the former order, if there is any room to question the substantial novelty of the application.

43. What motions to be made at Special Term rather than Appellate Division.]— The organization of the New York Supreme Court in special terms, held by a single judge, and in appellate divisions held by several judges, is for the convenience of business, and not necessarily jurisdictional. Either branch is in a proper sense the court.24 In the county of New York, where eight or more

22 See Stafford v. Ambs, 8 Abb. N. C. 237, saying that it cannot be done. 23 Oakley v. Cokalete, 6 App. Div. 229, 39 N. Y. Supp. 1001. In Dinkelspiel v. Levy, 12 Hun, 130, where an order which seems to have been made at Special Term, had been modified in the recitals, by a Special Term held by another judge, the General Term, while saying it was irregular on that account, refused to reverse it, saying that "it was in no sense an application to review or modify the decision which had been made," but merely to enlarge the recitals of the original order as to the record evidence. 24 Tracy v. Talmadge, 1 Abb. Pr. 460; Salmon v. Gedney, 75 N. Y. 479; below as Salmon v. Allen, 11 Hun, 29.