Facot v. Rothfeld

The order complained against was dated October 1, 1901, was made after argument by counsel for both parties, and in the face of an order of the special term dated August 31, 1901, which latter order denied the plaintiff’s motion, with costs. This appeal is taken on the ground that the former order is res judicata, and that the latter order is of no avail and should be reversed. With this view we entirely agree. It is claimed, as ground for alleged right to apply for and obtain the latter order, that, between the time of the denial of plaintiff’s application of August 31st and the date of the order appealed from, plaintiff served a reply to the alleged counterclaims of the defendant, and therefore it is urged that there is no merit in the appellant’s contention that the former order is a matter of adjudication. We cannot see that this makes any difference at all; for the right to the order is no greater because of the pleading, and the earlier order is still of record, potent and unchanged. The respondent’s remedy was an appeal from that order, an application for its modification, or its amendment; but certainly the parties have no right to two orders upon the record, one denying and the other granting the selfsame relief. The plaintiff should have moved the order of August 31st, if dissatisfied with its terms, and not have taken the unwarranted liberty of entering a second order while the first one, denying a similar application upon the merits, was in force. So far as the papers disclose to us, there is every reason in support of the appeal. The order of October 1st should be vacated, with costs and disbursements of appeal. Order vacated, with costs. All concur.