
    In the Matter of the Application of Francis O. Blackwell and Others, as Directors of the A. D. Farmer & Son Type Founding Company. William W. Farmer, Appellant; Francis O. Blackwell and Others, Respondents.
    
      Renewal of a motion — application to be relieved from an order because taken ■ “ through mistake, inadvertence, surprise or excusable neglect.”
    
    A motion based upon an order to show cause why the moving party should not be relieved from an' order on the ground that the same “was taken against him through mistake, inadvertence; surprise or excusable neglect, and why said order should not be vacated and set aside and the application herein made by the applicants be denied,”'is not an application for á rehearing or a reargument of the motion on which the order was granted, but is, in part, an independent proceeding, maintainable under section 724 of the Code of Civil Procedure, without previous leave of the court.
    
      It seems, that leave to renew a motion need not be granted by the judge who heard the original application.
    Appeal by William W. Farmer from an order of the Supreme Court, made at the Hew York Special Term, bearing date the 5th day of October, 1899, and entered in the office of the clerk of the county of ¡New York, sustaining the preliminary objections of the respondents, Francis O. Blackwell and others, to the hearing and granting of a motion to relieve said Farmer from an order bearing the date June 27, 1899, taken against him through mistake, inadvertence, surprise or excusable neglect, and to vacate and set-aside said order.
    
      Herman Aaron, for the appellant.
    
      Edmard F. Dwight, for the respondents.
   Patterson, J.:

This appeal is from an older sustaining preliminary objections to a motion" made by the appellant, William W. Farmer. It is recited in the order that a preliminary objection having been made to the hearing or granting of the present motion, upon the ground that it appears that the object of the said motion is to obtain an order vacating and setting aside a certain order granted by Mr. Justice B-eaoh, and entered herein on the 27th day of June, 1899, “ and to obtain a rehearing or a reargument of the matters presented to and considered by Mr. Justice Beach, upon the argument of the motion upon which said order of June 27th was granted, and upon the ground that it appears that a motion to vacate and set aside and modify the said order of June 27th, and for a reargument or a rehearing of the matters presented to and considered by Mr. Justice Beach, has already been made before the said Mr. Justice Beach, and has been denied by him by an order entered herein on the 2ist day of July, 1899, and upon the ground that a motion to vacate, set aside and modify said order of June 27th, or for such a rehearing or reargument of the matters presented to and considered by Mr. Justice Beach upon the argument of the motion upon which said order was granted, cannot be made at a Special Term presided over by another justice;” therefore, it is “ordered that the said preliminary objections be sustained, and that .the said motion be and the same hereby is wholly denied without prejudice to the merits.”

It is shown in the record before us that Francis 0. Blackwell, 'George A. Morrison and George W. Oakley, claiming to have been ■elected directors of the A. B. Farmer & Son Type Founding Company, presented a petition to the Supreme Court, under the authority of section 27 of the General Corporation Law (Laws of 1890, chap. 563, as amd. by Laws of 1892, chap. 687), and prayed to have their election as directors of such company established, and to ■compel the delivery of the assets of the company and the premises ■upon which its business was conducted, to them as directors, and to restrain William W. Farmerand others who had theretofore been ■directors, from acting as such or from interfering with the corporate property. The proceeding was initiated by an order to show ■cause based upon the petition. That order was made returnable in the Supreme Court. On the 16th day of June, 1899, the matter •came on to be heard before Mr. Justice Beach. Affidavits in opposition were submitted on behalf of Farmer, and on the 22d of June and on the 27th of June, 1899, an order was entered granting in all respects the prayer of the petitioners. Subsequently, and on the 11th of July, 1899, Farmer made a motion before Mr. Justice Beach for a resettlement of the. order of June twenty-seventh. On the twenty-second of July an order denying the motion for a resettlement was entered.- On the 2'lst of July, 1899 (the day before, the order denying the motion for a resettlement was entered). William W. Farmer procured an order to show cause (returnable on the twenty-sixth of July) why he should not be relieved from the order dated June 27, 1899, on the ground that the same “ was taken against him through mistake, inadvertence, surprise or excusable neglect, and why said order should not be vacated and set aside and the application herein made by the applicants be denied, and why said William W. Farmer should not have such other and further relief in the premises as may be meet.” That order to show cause was granted upon affidavits of William W. Farmer and several other affiants. These several affidavits contained allegations of facts relied upon to show specific reasons for the exercise of the power of the court to relieve Mr. Farmer from the order of Juñe twenty-seventh,, and as entitling him to a reconsideration of the matters determined and disposed of by that order of June twenty-seventh. Counter-affidavits were presented. On the return of the order to show cause, the preliminary objection was taken, with the result above indicated.

We are of the opinion that the order sustaining the preliminary objection was made under a misapprehension of the exact status of the motion as it came before the learned justice who made the order appealed from. If the motion had been confined to an application for a rehearing of a motion, which had already been decided, the objection would properly have been sustained, leave to renew not having been granted by the court (not necessarily by the judge who heard the original application). But this motion, was in part an independent proceeding, addressed to the Supreme Court under the authority of a specific provision of the Code of Civil Procedure. It was an application to be relieved from the order of June twenty-seventh, as one taken against Farmer through mistake, inadvertence, surprise or excusable neglect. The right to make such a motion did not depend upon the permission of a justice of the Supreme Court. It was necessarily founded upon matters extrinsic to the merits of the proceeding which had been passed upon and determined by Mr. Justice Beach. Section 724 of the Code of Civil Procedure empowers the court, in its discretion and upon such terms as justice may require, at any tiine within a year, to relieve a party from a judgment, order or other proceeding taken against him through his “ mistake, inadvertence, suiqirise or excusable neglect.” An application for .that relief is an independent and original proceeding, addressed purely to the discretion of the court. The original inquiry before the court is whether “ mistake, inadvertence, surprise or excusable neglect ” exists so as to entitle an applicant to the relief authorized by the section of the Code cited. The disposition previously made by the court of the merits' of the . controversy, resulting in the judgment or order, does not control the right to make the application for relief, however important and pertinent it may be when the merits of that application come to be passed upon.

We are, therefore, of the opinion that this motion should have been heard, so far as it related to relief, on the grounds specified, from the order of June twenty-seventh. We express no opinion as to the merits, but merely decide that the preliminary objection should have been overruled, and that the order must be reversed and the motion remitted to the Special Term to be heard on the merits, with ten dollars costs and disbursements of this appeal to the appellant. •

Van Brunt, P. J., Barrett- and McLaughlin, JJ., concurred.

Order reversed and motion remitted to the Special Term to be heard on the merits, with ten dollars costs and disbursements of appeal to the appellant.  