Goepel v. Robinson Mach. Co.

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 attachment 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 a restitution of the right lost by the plaintiff in consequence of the erroneous provision of the order appealed from. The defendant had no notice of such a motion, except so far as it was contained in the notice of settlement of the order which contained the provisions for restitution, and, as the defendant objected to the inclusion of that provision in the order, it was stricken out as not then properly before the court. The motion should not therefore have been denied upon the only ground upon which the learned judge at Special Term based his decision.

The defendant, however, takes the further objection that the Special Term had no power to make the motion, but it should have'been made at the Appellate Division, and bases this contention upon section 1333 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 the same court, as the ease may be, may make or compel restitution of property, or of a right, lost by means of an erroneous judgment or order; hut not so as to Meet the title of a purchaser in good faith and for value.”

In Mossein v. Empire State Surety Co., 117 App. Div. 830 , 103 N. Y. Supp. 1013 , it was held by the Second Department that this provision which authorized an Appellate Court to make restitution did not affect the inherent jurisdiction of the Special Term to order restitution, but was simply a 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

I think the Special Term, therefore, had power to entertain the application, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur, except HOUGHTON, J., who dissents.

(dissenting). The plaintiff obtained an attachment which was set aside. On appeal to this court the order setting aside the attachment 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 he, 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 or ’for value.”

In Hayes v. Nourse, 25 Abb. N. C. 95 , 7 N. Y. Supp. 656 , 11 N. Y. Supp. 825 , 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 vested either in the General Term of the court of common pleas, through which the judgment had passed, or in the'Court of Appeals where the judgment was reversed.

The proper interpretation of section 1323 of the Code was discussed in Carlson v. Winterson, 146 N. Y. 345 , 40 N. E. 995 , 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 may be 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 in the same section, and the rule would seem to be very

For these reasons, I think the Special Term was right in denying the restoration asked for, and that its order should be affirmed with leave to the plaintiff to move in this court.