
    GILBERT GILES v. WILLIAM AUSTIN.
    I. Beargument at General Term, when not ordered.
    
    ¡H. Btjt a General Term order or judgment reversing a judgment below and dismissing the complaint, may be amended so as to order a new trial, instead of dismissing the complaint.
    
    1. See statement of case for a detail of the facts on which the court refused to order a reargument, but did order an amendment.
    Before Barbour, Ch. J., McCunn and Curtis, JJ.
    
      Decided June 1, 1872.
    Motion for a reargument, and if that should be refused, for a resettlement of a general term order, so that it shall grant a new trial instead of dismissing the complaint.
    
    The plaintiff is the tenant of the defendant under a lease for a term of years, where a right of re-entry is reserved for non-payment of taxes and assessments. The plaintiff for a long period omitted to pay taxes and assessments on the demised premises. The landlord brought ejectment against the plaintiff, to enforce the forfeiture. About twelve years of the term of the lease were yet unexpired. The rent reserved by the lease to the landlord was two thousand eight hundred dollars per annum, and the rent received by the lessee, who had improved the property at considerable expense, was about thirteen thousand dollars or fourteen thousand dollars per annum.
    The present suit was brought against the landlord, to restrain him from proceeding in his ejectment suit, and to obtain equitable relief from the forfeiture. It was referred, and upon the referee’s report there was a judgment for the plaintiff, relieving him from the forfeiture upon making certain payments of arrears, costs, allowances, &c. From this judgment the defendant appealed to the general term, and there was a decision made'thereupon reversing the judgment appealed from, and an order entered dismissing the complaint.
    The present application is made by the plaintiff upon affidavits, the papers on appeal, the opinion given on the decision, and the order entered thereon for a re-argument, and, if that is not granted, then for a resettlement and correction of the order on appeal, so as to grant a new trial instead of dismissing the complaint.
    The affidavits on the part of the plaintiff claim that of the two members of the court who were for a reversal, one placed it mainly upon the ground that the bringing of a suit in equity by the plaintiff for relief against the forfeiture, instead of seeking relief by motion for leave to file a supplemental answer, was in itself such, a breach of equity and good conscience as to deprive the plaintiff of any equitable right to relief against the forfeiture, and that there should be a reversal, not only, but also a dismissal of the complaint without ordering a new trial.
    It is further stated that this point in reference to plaintiff ’ s bringing a suit in equity, was not discussed or taken on the argument, that its consequences are serious, and that it has operated as a surprise to plaintiff’s counsel, and that they believe, upon a reargument, a different view of the question may be taken. Also that the concurring opinion put the case generally upon plaintiff’s laches and action, but said nothing in relation to dismissing the complaint without ordering a new trial, and that such order of dismissal was entered without any previous notice of settlement, or other notice to the plaintiff’s attorneys. That the question whether, in case of reversal, there should be a new trial or an absolute dismissal of the complaint, was.not discussed on the argument, it being expected on plaintiff’s part that if the judgment was not affirmed a new trial would be ordered, and that this is customary, and that in case of a new trial the case can be so changed by new evidence from its appearance upon the former trial as to induce the court to come to the conclusion that the forfeiture should be relieved against in this suit.
    It is further set up by the affidavits on the part of the plaintiff that his leasehold estate is exposed to jeopardy by the defendants neglecting to pay large assessments upon the demised premises, imposed before the granting of the lease, and for which they were sold by the corporation in September, 1871; and that plaintiff supposed that the time when he should pay the taxes concerned himself alone. Also that the course which was taken for obtaining relief against the forfeiture by a regular suit in equity, was not dictated or requested by the plaintiff, but was wholly the act of his counsel, who, considering the estimated value of the leasehold interest—some sixty thousand dollars— and the advanced years of the plaintiff, and its great importance to him, and the opinion of this court in Garner v. Hannah, 6 Duer 275, deemed it a just and necessary measure of precaution to thus present the claim, where there could be a regular trial, with full opportunities for exceptions and remedies on appeal, rather than by a summary application by a practice motion addressed to the discretion of the court.
    That plaintiff was guilty of no fault, unless it was in. passively following the advice of his counsel, which was according to their best judgment. That the plaintiff is a simple-minded man, and of very slender business capacity at his now advanced age, and that whatever may be regarded as censurable in his conduct in this affair has proceeded from no worse cause than weakness and folly in a man far advanced in years, and of such present condition as is alleged in the affidavits on plaintiff’s behalf.
    There were no affidavits read on the part of the defendant, the lessor.
    
      Joseph H. Choate, for plaintiff.
    
      Thomas B. Browning, for defendant.
    
      
       Note.—For principal case see Ante.
      
    
   By the Court.—Curtis, J.

The tendency of the administration of justice is to relieve from forfeitures. Equity has always sought to mitigate the harshness and severity of the common law. The undenied statements on which this application is addressed to the court, the magnitude of the forfeiture attempted to be enforced, the importance of the interests at stake, the relative characters, capacities, and intentions of the parties, and their respective claims to the equitable consideration of the court, are all matters that are presented in this application.

If, as it appears to be, this case was in part decided at the general term adversely to the plaintiff, upon a point not raised or discussed there, a question as to the equities of his mode of applying to the court for relief from the forfeiture ; then, it appears to me, that he should have an opportunity of presenting the additional evidence of his good faith and the equities of his position, as urged by this application. When a suitor of slender capacity, and advanced in years, seeks to be relieved from a most onerous forfeiture, upon such terms as to the court may seem equitable, and as it may impose, unless he has taken a position or performed acts, depriving himself of all claim to equitable consideration, the court will be disposed to hear his application and in all proper cases extend the relief prayed upon suitable terms.

The plaintiff sought relief by bill in equity, instead of by motion to set up his equities by a supplemental answer ; and as the question respecting the fairness and. propriety of his course in this respect was not raised or discussed at the general term, but was presented in its decision as a prominent ground for debarring him of his relief, and as he now applies upon verified statements that are uncontradicted, alleging that upon a new trial he can'show that he acted in good faith and fairness, and upon the advice of able counsel, and upon what they believed to be the settled practice of this court, it is but just and in accordance with equity that he should have such an opportunity. When he places himself in the hands of the court to be relieved of the heavy forfeiture consequent upon his errors, or his infirmities and mistakes, and upon their own terms as to what he shall be compelled in equity to do as a condition for this relief, he should have an opportunity by proofs and arguments to present his position, and protect it from a new and undiscussed difficulty.

There can be no injustice or wrong result to the defendant from this course. The court can relieve him from all loss that may occur from costs or delay, in case they relieve from the forfeiture.

There are substantial reasons why a reargument should not be ordered, and it is a sufficient one, that the plaintiff has a remedy by appeal; but the ordering of a new trial instead of dismissing the complaint after reversing the judgment, seems more in accordance with usage, and in this case under the circumstances shown, especially, a just and proper course to be pursued.

I think the order of the general term should be amended by granting a new trial, instead of dismissing the complaint.

Barbour, Ch. J.

(Concurring in denying the motion for a reargument, but dissenting from the decision on the motion 'to aménd.)—This is a motion for leave to reargue an appeal which was heard and determined at general term, some time since, by three judges, of whom only one is now sitting upon the hear- „ ing of this motion. Eo new fact is alleged to have been discovered, nor any important decision is claimed to have been overlooked. Indeed, 1 have been unable to find in the points or argument of the learned counsel who makes the motion, any reason in support of his client’s case which was not or ought not to have been presented to the court upon the hearing of the appeal. This motion, therefore, is simply, in effect, an appeal from a judicial decision of three judges, sitting at general term, to one only, of them, and two other judges of the same court, at a different general term ; and for that of other considerations, the motion should be denied. Even in appellate courts of dernier resort which are composed of the same judges at each succeeding term, motions for leave to reargue appeals-are seldom granted, and never unless for very strong reasons, suchas that a material fact has been overlooked or misconstrued by the court, or some recent authoritative decision, not cited upon the argument, has been found. If, then, courts of ultimate appellate jurisdiction, thus composed, are chary in regard to motions of this character, with still greater reason ought this court to refuse to entertain them, except, possibly, in extraordinary instances. For, aside from the general rule of all appellate courts, above adverted to, the granting by three of the six judges of -this court of a motion to reargue an appeal which had already been heard and judicially decided by a general term composed wholly or in part of other judges, would be not only discourteous in the extreme to those not then sitting, whose opinions are sought to be reviewed, but. unusual and highly indecorous. Indeed, if such a practice were to obtain and become general, the inconvenience resulting' from it, both to the court and its counsellors, would become unbearable. We had better adhere to the maxim stare decisis.

Besides, if the plaintiff is aggrieved by the final judgment which has been rendered against him at gen-, eral term, he has a full and perfect remedy without resorting to a motion like this. The court of appeals, it may safely be assumed, will reverse the judgment and award a new trial if that ought to be done.-

The motion should be denied, with costs.-  