Price v. Price — 19 N.Y. St. Rep. 154

Majority

p. 154

Constance B. Price, Resp’t, v. Walter J. Price et al., Impleaded with Josephine Little, App’lts.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

Practice—Order entered on a mistake oe eacts—Right oe court to REHEAR THE MOTION—HoW REHEARING MAY BE OBTAINED.

Where an order has been entered under a mistake of facts it is correct and proper to correct the mistake by amending the order. Where the rights of parties may be affected by an order made upon the decision of a motion, leave may be given afterward by the court to rehear the motion itself, and it also may be reheard without leave upon additional facts brought to the knowledge of the court justifying that proceeding.

Appeal from an order amending and enlarging a preceding order.

James R. Marvin, for app’lts; Charles Jones and Geo. H. Starr, for resp’t.

Theorder which was amended or enlarged by the order from which the appeal has been taken, was made at a court in which Justice Joseph Potter presided, and it directed the referee to compute the amount payable by the defendants named in the order to the plaintiff, as damages for withholding her dower, and for that purpose to take an account of the rents, issues and profits received by the defendants respectively from the real property owned by them, in which the plaintiff had been adjudged entitled to dower. This order restricted the inquiry to the entry of the decree, or the time when any part of the' property had been sold or conveyed by either of the defendants, and in the event of a sale, to take the account to the date of such salé, and to report the amount payable at that time, and also to ascertain and report the amount for the like purpose due since the entry of the interlocutory decree, and until the sale had been made of any of the property subsequent to the entry of such decree. These portions of the order by the order from which the appeal has been brought, were stricken out, and the referee was accordingly placed at liberty to take and state the account without restricting it as to any parcel of the property sold, to the time when the sale itself had taken place.

It has been objected that the court did not possess the power, or authority, to make this change in the preceding order. But that position is not capable of being sustained. For it appeared by the affidavit presented on behalf of the plaintiff that the order sanctioned by Mr. Justice Potter had been entered under an alleged misapprehension as to the extent of the right of the plaintiff to recover her one-third of the rents and profits of property which might have been sold after the commencement and during the pendency of the action. No authoritative decision appears to have been made by Justice Potter limiting the right of the plaintiff to recover the rents and profits of either parcel of land to the time when a sale did take place.

But the order was adopted and entered as it was drawn, and proved at that time to be satisfactory to the plaintiff’s counsel. It was not reviewing any decision made by Justice Potter, therefore, for the court to make the order now in controversy. And as it appeared that the preceding order had been entered under an alleged mistake of the plantiff’s rights, it was correct and proper to reheve the case from the effect of that mistake by amending and enlarging the order.

The power which the court possesses over orders made, as the result of motions, is more enlarged and more flexible, than that existing over judgments and other more formal determinations concerning the rights of parties. Where

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their rights may be affected by an order made upon the decision of a motion, leave may be afterwards given by the court to re-hear the motion itself, and so it may be also reheard without leave upon additional facts brought to the knowledge of the court, justifying that proceeding. This subject was considered quite at large in Riggs v. Pursell ( 74 N. Y., 370 ), and the court there held,that formal notice of an application to renew a preceding motion was not indispensably necessary, and that the hearing of the motion itself was, in effect, allowing it to here-heard. Id., 378-9 . And the general principle from which this was considered to result, was followed in Easton v. Pickersgill, 75 N. Y., 599 . In substance and effect, the last order, directed a broader and more extended inquiry than had been included in the first order, and as that appeared to be justified by the facts, it was not only the right, but the duty of the court to provide that direction.

The order which is complained of has determined no right or liability in favor of or against either parly. It has merely broadened the subject of inquiry before the referee, upon which evidence could be taken and reported to the court, and it appears by the affidavit that such evidence was received, and that the referee is ready to make his report upon its basis. When that shall be done, all questions of liability will be in a situation to be considered and passed upon by the court, and if either defendant should be exonerated from liability for rents and profits, after the conveyance of any parcel of the property in dispute, a decision to that effect will then be made. But if the sale shall not end. the liability, then the case will be in a condition to be completely and effectually disposed of on that view. No harm has been done to any person by this order, but it has placed the case where it can be wholly and entirely disposed of as the facts may require that to be done under the law applicable to the controversy.

The order should be affirmed, with ten dollars costs and also the disbursements.

Van Brunt, P. J., and Bartlett, J., concur.