62 N.Y.S. 793 | N.Y. App. Div. | 1900
This appeal is from an older sustaining preliminary objections to a motion" made by the appellant, William W. Farmer. It is recited in the order that a preliminary objection having been made to the hearing or granting of the present motion, upon the ground that it appears that the object of the said motion is to obtain an order vacating and setting aside a certain order granted by Mr. Justice B-eaoh, and entered herein on the 27th day of June, 1899, “ and to
It is shown in the record before us that Francis 0. Blackwell, 'George A. Morrison and George W. Oakley, claiming to have been ■elected directors of the A. B. Farmer & Son Type Founding Company, presented a petition to the Supreme Court, under the authority of section 27 of the General Corporation Law (Laws of 1890, chap. 563, as amd. by Laws of 1892, chap. 687), and prayed to have their election as directors of such company established, and to ■compel the delivery of the assets of the company and the premises ■upon which its business was conducted, to them as directors, and to restrain William W. Farmerand others who had theretofore been ■directors, from acting as such or from interfering with the corporate property. The proceeding was initiated by an order to show ■cause based upon the petition. That order was made returnable in the Supreme Court. On the 16th day of June, 1899, the matter •came on to be heard before Mr. Justice Beach. Affidavits in opposition were submitted on behalf of Farmer, and on the 22d of June and on the 27th of June, 1899, an order was entered granting in all respects the prayer of the petitioners. Subsequently, and on the 11th of July, 1899, Farmer made a motion before Mr. Justice Beach for a resettlement of the. order of June twenty-seventh. On the twenty-second of July an order denying the motion for a resettlement was entered.- On the 2'lst of July, 1899 (the day
We are of the opinion that the order sustaining the preliminary objection was made under a misapprehension of the exact status of the motion as it came before the learned justice who made the order appealed from. If the motion had been confined to an application for a rehearing of a motion, which had already been decided, the objection would properly have been sustained, leave to renew not having been granted by the court (not necessarily by the judge who heard the original application). But this motion, was in part an independent proceeding, addressed to the Supreme Court under the authority of a specific provision of the Code of Civil Procedure. It was an application to be relieved from the order of June twenty-seventh, as one taken against Farmer through mistake, inadvertence, surprise or excusable neglect. The right to make such a motion did not depend upon the permission of a justice of the Supreme Court. It was necessarily founded upon matters extrinsic to the merits of the proceeding which had been passed upon and determined by Mr. Justice Beach. Section 724 of the Code of Civil Procedure empowers the court, in its discretion and upon such terms as justice may require, at any tiine within a year, to relieve a party from a judgment, order or other proceeding taken against
We are, therefore, of the opinion that this motion should have been heard, so far as it related to relief, on the grounds specified, from the order of June twenty-seventh. We express no opinion as to the merits, but merely decide that the preliminary objection should have been overruled, and that the order must be reversed and the motion remitted to the Special Term to be heard on the merits, with ten dollars costs and disbursements of this appeal to the appellant. •
Van Brunt, P. J., Barrett- and McLaughlin, JJ., concurred.
Order reversed and motion remitted to the Special Term to be heard on the merits, with ten dollars costs and disbursements of appeal to the appellant.