106 N.Y.S. 990 | N.Y. App. Div. | 1907
Lead Opinion
This motion was denied upon the ground that the relief here sought had been refused by this court, as a clause granting this portion of the motion was stricken from the order of the Appellate Division when the order vacating the warrant of attachnient was reversed. The learned court at Special Term was mistaken as to the reason why this clause was stricken from the. proposed order of this court. Upon that appeal it did not appear by the record that the property levied on under the warrant of' attachment had been released from the levy and returned to the defendant, and as that appeal had to be decided upon the record it was quite improper to insert in the order a provision based upon a fact which did not appear upon the record, but which had to be shown by affidavit. The proper proceeding was to make a motion for what was in effect
The: defendant, however, takes the further objection that the Special Term had no power to entertain the motion, but. it should have been made at the Appellate Division, and bases this contention upon section 1-323 of the" Code of Civil Procedure which provides that ‘when a final judgment or order is reversed or modified, upon appeal,.the appellate court, or the general term of tlie same court, as the case may be, may make or compel restitution of. property, or .of a right, lost by means of the erroneous judgment or order.; but Hot so as to affect the title of a purchaser in good faith and for value.” In Mossein v. Empire State Surety Co. (117 App. Div. 820) it was held by the second department that this provision which authorized an appellate Court to make restitution did hot affect the inherent jurisdiction of the Special Term to order restitution, but ivas simply á grant of .the like power which was inherent in the court at Special Term to the appellate court, which, reversed the order or judgment appealed from. As this prescribed a rule of practice, we think we should follow the second department and affirm the right of the Special Term to entertain an application for restitution where a right has been lost to a party'' to an action or special" proceeding by virtue of an order which subsequently upon appeal was reversed; but I fully agree with the second. department. This provision granting power to the appellate, court is general, applying to the .Court of Appeals as well as to the several branches of the-Supreme Court authorized to hear appeals. . Without this provision neither this court nor the Court of Appeals on an original application would have power to decree restitution. ' The application would have to be made at the Special Term. It seems to me that this authority, which is. permissive merely, was intended- to confer upon appellate courts the'same power that had always resided in and .been
I think the Special Term, therefore, had power to entertain the application, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Patterson, P. J., McLaughlin and Scott, JL, concurred; Houghton, J., dissented.
Dissenting Opinion
The plaintiff obtained an attachment which was set aside. On appeal to this court the order setting aside the attáchment was reversed and it was thus restored. After the vacating of the attachment the defendant removed the property levied upon out of the jurisdiction of the sheriff.
I agree that this property should be restored, but I do not think the Special Term had any power to entertain a motion for- its restoration. The motion should have been made in this court, where the reversal was had.
The original order setting aside the attachment was a final order so far as the rights under the attachment were concerned. Section 1323 of the Code of Civil Procedure provides: “ When a final judgment or order is reversed or modified upon appeal, the appellate court, or the general term of the same court, as the case may be, may make .or compel restitution of property or of a right lost by means of the erroneous judgment or order, but not so as to affect the title of a -purchaser in'good faith and for value.”
In Hayes v. Nourse (25 Abb. N. C. 95) the power of a Special Term to make an order for restitution on reversal was discussed, and it was held that the Special Term had no power, but that the same was
The proper interpretation of section 1323 of the Code was discussed in Carlson v. Winterson (146 N. Y. 345), and in his opinion Haight,. J., in the expressed hope that, there might be no doubt- in the future as to the court in which-.a motion for restitution . should be made, took pains to state the proper .practice to be pursued. He says: “It follows that the motion may be .made in-the court that reverses-the judgment,, or.it maybe made, at the General Term of the court to which the case has been remitted and is pending, if that court has a General Term. If not, the motion must be made in the court that reversed the. judgment.”
Of course, what is said respecting a judgment applies to the order mentioned inthe same section, and the rule would seem to be very plain.
Mossein v. Empire State Surety Co. (117 App. Div. 820) is not to the contrary, nor an. authority, upon the.question involved. " In that case the question discussed was as to the power of the Special Term to direct .-restoration of money-which it had previously ordered paid into court. ' Of course the Special Term'had power to do that. Ho question of the powerof the Special Term to order restoration-after reversal was involved and, nothing was said on that subject.
For these reasons I think the Special Term was right in denying the -restoration asked for arid that its. order, should be affirmed, with leave to the plaintiff to move in -this court. - ..
. Order reversed, with ten' dollars costs' and disbursements, and motion granted, with ten dollars costs. ■
