Sanger v. French — 37 N.Y.S. 148

Majority

p. 148

(1 App. Div. 323.)

SANGER v. FRENCH.

(Supreme Court, Appellate Division, First Department.

February 7, 1896.)

Headnote

Decision on Appeal—Resettlement oe Order—Appellate Division.

The appellate division oí the supreme court, being the successor of the general term, may resettle an order made by the general term.

Action by Frank W. Sanger against Thomas H. French. A judgment in favor of plaintiff was reversed on appeal ( 36 N. Y. Supp. 653 ), and defendant moves for a resettlement of the order of reversal. Granted.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and INGRAHAM, JJ.

A. J. Dittenhofer, for the motion.

A. Goodwin, opposed.

This is a motion for the resettlement of an order entered upon the decision of the general term, in order to make the same conform to the actual decision of the court. The ground upon which this motion is opposed is that this court has not power to entertain any such motion. We do not think that this objection is well founded. This court evidently has the power to direct the entry of a proper order, where an improper one has been entered upon the decision of the general term. The general term always exercised that power, notwithstanding the change in the personnel of the court; and, as all the jurisdiction of the general term has devolved upon the appellate division, there seems to be no valid reason why it should not exercise such power in a proper case. We have already held that the court has power to entertain a motion for a reargument of an appeal which has been decided by the general term of the court of common pleas, and also to open a default which had been entered in the general term of the superior court. Being, as already stated, the successor of these several general terms, the appellate division may, in furtherance of justice, direct the amendment of a record. In this case it appears plainly, from the opinion handed down upon the decision of the appeal, upon what ground such decision was rendered.

We think that the motion for resettlement should be granted.