Morganstern v. Endelman

It is clear from the face of the papers presented to us upon this appeal that every presumption which may be indulged in should be construed in favor of sustaining the judgment. McElroy v. Railway Co. (Sup.) 6 N. Y. Supp. 306 . The apparent absence of good faith on the part of the defendant, as well as of diligence, render section 724 of the Code imperative, and make it imperative that the order appealed from should be reverséd. Moreover, judicial policy requires that a justice at special term should not assume to vacate an order made by another justice, except where permission is granted by statute, before application has been made to the justice granting the order for its modification, amendment or vacation. Fisher v. Hepburn, 48 N. Y. 41 ; ICamp v. ICamp, 59 N. Y. 212 . It clearly appears that, if the order complained against were to be maintained, it would be rendering the neglect of defendant the means for gaining his cause. See Wooster v. Woodhull, 1 Johns. Ch. 538 . The investigation by the supreme court of the merits of the matter of difference between the parties, in the interim between the dates of the two orders, makes it certain that the interests of justice are best subserved by maintaining the judgment already secured by plaintiff. The order appealed from should be reversed, with costs and disbursements to the appellant. Order reversed, with costs and disbursements to appellant.

DELEHANTY, J., concurs.