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Price v. Price

22 Abb. N. Cas. 299 Court N. Y. Supreme Court, First Department, General Term ; English

Delivered by Daniels, J.

Contents

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p. 299
PRICE v. PRICE
N. Y. Supreme Court, First Department, General Term ;
December, 1888.

Headnote

Motions and orders; power of court to modify previous order.] The court has a general power over orders made by it; and an order-entered at a term held by one judge may be modified by an order made at a term held by another judge in respect to provisions inserted under misapprehension or mistake of counsel, without any authority or decision upon the point. So held, where the-later order enlarged an inquiry directed to be made by a referee under the former order; the determination of questions arising" thereon being reserved for the court.
Appeal from an order.
This was an action for dower brought by Constance B. Price against Walter J. Price and others, impleaded, with Josephine Little.
An interlocutory judgment was obtained adjudging the plaintiff entitled to dower, after which an order of reference was granted by Hr. Justice Potter, pursuant to Code Civ. Pro. § 1600, to-compute the plaintiff’s damages against the defendants for withholding her dower.
. That order was as follows : [After stating formal parts} “ Ordered that it be and it hereby is referred to [referee] as-
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■sole referee to compute the amount payable by the defendants [names] respectively, to the plaintiff as damages for withholding her dower, and for that purpose to take an .account pursuant to the provisions of the Code of Civil Procedure, of the mesne, rents, issues and profits received by said defendants, respectively, out of or from the real property owned by them, respectively, in which, by the interlocutory decree in this action, dated and entered the tilth day of December, 1884, the plaintiff was adjudged entitled to be endowed from the time of the commencement ■of this action until the date of the entry of said decree [or if any of the aforesaid real property was sold and conveyed by any of said last named defendants prior to the entry of said decree, to take the account as to the property so sold until the date of the sale thereof], and to report the amount payable by each defendant, respectively, at the date of said ■decree [or at the date of such prior sale, if any such sale was had, as the case may be]. And also to take a further and separate account with each of said last named defendants, respectively, and to separately report upon the amount of the mesne, rents, issues and profits received by them, respectively, from or out of any real property in which the plaintiff was • adjudged by said decree, entitled to be endowed from and after the date of the entry of said decree, until the time of the filing by said referee of his report thereon [or if any of said real property was sold by any defendant after the entry of said decree, until the date of the sale thereof, as the case may be].”
After the entry of this order the plaintiff moved before Mr. Justice Andrews, at special term, to amend the order nunc pro tune by striking therefrom the words which have been above indicated by inserting the same in brackets. The affidavit of the plaintiff’s attorney in support of the motion alleged in substance that the order was erroneously drawn by him because of a misconception of the law as to the extent of the liability of the defendant, Josephine Little, to account to the plaintiff in the action.
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This motion was granted and the following opinion was-rendered :
Andrews, J.—As it is stated in the affidavit of plaintiff’s attorney that the order of reference was drawn and entered in its present form through his inadvertence or misapprehension, and as it would seem that the question involved in the present motion was not passed upon or considered by Mr. Justice Potter, I think that the motion should be granted, and the order of reference amended in the manner asked for, leaving the question whether the defendant, Little, is liable for arrears after she sold the property to be determined hereafter.
Prom the order entered upon this decision the defendant, Josephine Little, appealed to the general term.
James R. Marvm, for the appellant.
Charles Jones (Starr & IIooTcer, attorneys), for the respondent.

The order which was amended or enlarged by the order from which the appeal has been taken, was made at a court in which Justice Joseph Potter presided, and it directed the referee to compute "the amount payable by the defendants named in the order to the plaintiff, as damages for witholding her dower, and for that purpose to take an account of the rents, issues and profits received by the defendants respectively from the real property owned by them, in which the plaintiff had been adjudged entitled to dower. This order restricted the inquiry to the entry of the decree, or the time when any part of the property had been sold or conveyed by either of the defendants, and in the event of a sale, to take the account to the date of such sale and to report the amount payable at that time, and also to ascertain and report the amount for the like purpose due since the entry of the interlocutory decree, and until the

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sale had been made of any of the property subsequent to the entry of such decree. These portions of the order by the order from which the appeal has been brought, were stricken out, and the referee was accordingly placed at liberty to take and state the account without restricting it as to any parcel of the property sold, to the time when the sale itself had taken place.

It has been objected that the court did not possess the power or authority to make this change in the preceding order. But that position is not capable of being sustained, for it appeared by the affidavit presented on behalf of the plaintiff that the order sanctioned by Mr. Justice Potteb had been entered under an alleged misapprehension as to the extent of the right of the plaintiff to recover her one-third of the rents and profits of property which might have been sold after the commencement and during the pendency of the action. Xo authoritative decision appears to have been made by Justice Potteb limiting the right of the plaintiff to recover the rents and profits of either parcel of land to the time when a sale did take place.

But the order was adopted and entered as it was drawn, and proved at that time to be satisfactory to the plaintiff’s counsel. It was not reviewing any decision made by Justice Potteb, therefore, for the court to make the order now in controversy." And as it appeared that the preceding order had been entered under an alleged mistake of the plaintiff’s rights, it was correct and proper to relieve the case from the effect of that mistake by amending and enlarging the order.

The power which the court possesses over orders made, as the result of motions, is more enlarged and more flexible than that existing over judgments -and other more formal determinations concerning the rights of parties. Where their rights may be affected by an order made upon the decision of a motion, leave may be afterwards given by the court to rehear the motion itself, and so it may be also reheard without leave upon additional facts brought to the

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knowledge of the court, justifying that proceeding. This subject was considered quite at large in Riggs v. Pursell ( 74 N. Y. 370 ), and the court there held, that formal notice of an application to renew a preceding motion was not indispensably necessary, and that the hearing of the motion itself was, in effect, allowing it to be reheard (Id. 378-9). And the general principle from which this was considered to result, was followed in Easton v. Pickersgill ( 75 N. Y. 599 ). In substance and effect, the last order directed a broader and more extended inquiry than had been included in the first order, and as that appeared to be justified by the facts, it was not only the right, but the duty of the court to provide that direction.

The order which is complained of has determined no .right or liability in favor of or against either party. It has merely broadened the subject of inquiry before the referee, upon which the evidence could be taken and reported to the court, and it appears by the affidavit that such evidence was received, and that the referee is ready to make his report upon its basis. When that shall be done, all questions of liability will be in a situation to be considered and passed upon by the court, and if either defendant should be exonerated from liability for rents and profits, after the conveyance of any parcel of the property in dispute, a decision to that effect will then be made. But if the sale shall not end the liability, then the case will be in condition to be completely and effectually disposed of on that view. No harm has been done to any person by this order, but it has placed the case where it can be wholly and entirely disposed of, as the facts may require that to be done under the law applicable to the controversy.

The order should be affirmed, with $10 costs and also the disbursements.

Van Brunt, P. J., and Bartlett, J., concur.

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