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Dewsnap v. Matthews

119 A.D. 167 Court First Department, Decision date 1907-05-10 English

Delivered by Ingraham, J.:

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p. 167
George G. Dewsnap, Respondent, v. Moses Matthews and Moses Valenstein, Defendants. Irving Bachrach and Isaac Schmeidler, Appellants.
First Department,
May 10, 1907.

Headnote

Appeal after resettlement of' order.
When after an appeal from an order the same is resettled so that an entirely different record is presented and ño notice of appeal from the resettled order is served, the appeal from the first order should be dismissed. This because an appeal from any order must be heard upon the papers recited in- that order and a resettled order stands in place of the original order.
p. 168
■ ■ Appeal by Irving Bachrach and another from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1907, denying a motion made by the defendants and the appellants to vacate an ex parte order appointing a receiver, and to make the appellants parties defendant in this action. -
Baul Gross, attorney [Herman Kahn on the brief], for the .appellants.
Alfred T. Davison, for the respondent.

The original order denying this motion was entered on January 7,1907. On February 2, 1907, the defendants appealed from the. order. On the 22d of March, 1907, an- order was entered resettling the order of January 7, 1907, and by this resettlement the order of January seventh was materially changed. Affidavits not recited in the first order as affidavits upon which the motion was made were inserted, so that an entirely different record was presented upon which an appeal was to be heard. No' notice of appeal’ was served from the order as resettled. The respondent noticed á motion to' dismiss this appeal upon the ground that the order had been resettled after the appeal was taken, and that the appeal must be from the resettled order* and not from .the order as originally entered. We think this motion should be granted. The appeal from the order as originally entered must be heard upon the papers recited in that order, while the appeal from the order as resettled must be- heard upon an entirely different record; and this court has uniformly held that the resettlement of an order in effect-abrogates the order resettled and the resettled order stands as the order of the court upon the application. .

Two decisions of the General Term of the Supreme Court (Lindon v. Beach, 6 Hun, 200 , and Landers v. Fisher, 24 id. 648) are cited as sustaining the appellants, but it does not appear in those cases that the resettlement consisted of an entirely new order in place of the' order originally entered, and we think that the practice adopted by this court of requiring an appeal from the order sought to be reviewed is the better practice and essential to the orderly transaction of the business of the court. In this case we have lately

p. 169
directed a further resettlemént of the order by making it appear that the motion was made on behalf of the appellants ( 118 App. Div. 789 ), and on the appeal from the order as resettled the question' sought to be reviewed can properly be determined. As the real moving parties are not before the court on this appeal, it would not be proper to express any opinion upon the questions presented.

The appeal is, therefore, dismissed, with ten dollars costs and disbursements.

Patterson, P. J., Laughlin, Clarke and Scótt, JJ., concurred.

Appeal dismissed, with ten dollars costs and disbursements.

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