39 Misc. 794 | N.Y. App. Term. | 1903
The case presented by the moving papers is not one of mistake or misapprehension of fact, but of legal error, and the question ip whether the court below, on plaintiff’s application, could reconsider defendant’s motion to vacate the order of arrest which had resulted in the vacation of the order, and then set aside the order vacating the order of arrest, reinstate the order of arrest and deny defendant’s motion to vacate, and all this after the time for appealing from the first order had expired and for no other reason than that since the decision of the original motion a decision was rendered by the Court of Appeals which, if known at the time, would have called for a different determination of the original motion.
A motion for a rehearing or reargument of a motion is generally addressed to the discretion of the court. But the power to grant a rehearing or reargument cannot be arbitrarily exercised, and if the judge grants it upon insufficient grounds it is an error which should and will be corrected by the appellate court whenever the question is properly brought before it for review. Matter of Livingston, 34 N. Y. 576. As a general rule leave, to reargue will be granted where it appears that there is some decision or some principle of law which would have a controlling effect and which has been overlooked, or that there has been a misapprehension of fact, but* not otherwise. 14 Encyc. of Pl. & Pr. 174, and
“ Public policy requires that there should be at some time an end to litigation, and when a matter has been once disposed of by a court and there has been no misapprehension or mistake as to the questions presented and decided, and the parties have acquiesced in the decision, and the time to appeal has expired, the matter should not be reopened because at some subsequent period and in another case, there is a change in judicial decision and the law declared otherwise by another court.”
The order appealed from should be reversed, with costs, and the motion denied, with costs.
Clarke and Greenbaum, JJ., concur.
Order reversed, with costs, and motion denied, with costs.