Caro v. Metropolitan Elevated Railway Co. — 48 N.Y. Super. Ct. 545

Majority

p. 545

DIEGO S. CARO et al., v. THE METROPOLITAN ELEVATED RY. CO.

Headnote

Power of general term, to vacate or resettle judgment entered an order of former generad term where it does not conform to order—when such power will not he exercised.

Before Sedgwick, Ch. J., Freedman and Arnoux, JJ.

Decided November 6, 1882.

Motion by defendants to vacate or re-settle judgment by clerk, upon order made by a former general term, composed of judges other than those now sitting.

It is impossible to determine from the record, whether it was the intent of the general term which heard the demurrer, to direct judgment according to the forms which have been presented by the defendants on this motion, and not according to the form actually entered, unless this general term should proceed to hear anew the issue of law which was made by the demurrer. The former general term ascertained what facts alleged in the complaint constituted a cause

p. 546

or causes of action, and what was the proper relief. Of course this general term cannot review the decision. The peculiarities of the situation are practically shown by the fact that defendants now present two forms of judgment, which seem to be based upon distinctly different views of plaintiff’s rights. There is no sufficient ground, therefore, for directing judgment as asked by the defendants. It is not intended to deny that this court would have the power to vacate the judgment entered by the clerk, if it appeared that it was not in conformity with the order which the former general term made. In this case, however, in view of its history disclosed by the record, it does not appear that the defendants have an absolute right to have this question determined. The correspondence between the attorneys shows that the case was shaped for the purpose of getting the judgment of the court of appeals upon the rights of the parties. If the present judgment were set aside, it might result in another hearing at a general term of the appeal from the special term. An appeal from the present judgment, will result in an adjustment of the defendant’s claim.

David Dudley Field and Dorsheimer, Bacon & Deyo, for defendants.

Julian T. Davies and Roger Foster, for plaintiffs.

Motion denied, without costs.