
    Jesse N. Bolles, receiver &c., vs. John A. Duff and others.
    A motion, for a new trial having been put upon the general term calendar, was noticed by both parties for argument, and on the case being called, the plaintiff’s counsel appeared, but no one appeared for the defendant. The plaintiff’s counsel expressing an unwillingness to take the defendant’s default, requested permission to submit the case, with his points, with liberty to the defendant to submit points in support of his motion. The court permitted him to do so, and made an order to that effect, took the case for decision, and directed notice of the order to be given to the defendant, which was given.
    
      Held, 1. That this proceeding could not be properly called taking a default; and that the order so made could not be vacated at a subsequent general lerm held by other justices, while the case still remained before the court, undecided, on the ground that the defendant’s default had been taken.
    2. That the proceedings taken at the first general term, whether called a submission or not, gave the judges then present and holding the term, not only power to make a decision or disposition of the case and motion, binding on the parties, but also made it their duty to decide or dispose of the same, whether the defendant did or did not avail himself of the privilege of submitting points.
    3. That if those judges had that power, and such duty was or had been imposed upon them, then the general term which made the subsequent order vacating the first, had no power to make the same; inasmuch as, when it was made, the motion for a new trial had not been decided or disposed of by the justices who had previously taken the papers for the purpose of deciding the motion.
    4. That it was the plain duty of the latter justices, notwithstanding the subsequent order, to decide and dispose of the defendant’s motion for a new trial.
    6. That irrespective of the question of the power of the justices of this court to interfere with the exercise of the official powers, or the performance of the official duties of each other, after the exercise of such powers and the performance of such duties, have attached in a particular case, and before they have been exercised or performed, the order last made should be vacated, on the ground that it must be presumed to have been made under a misapprehension of the prior proceeding, and the effect of it in possessing the justices who held the first general term of the case and motion of the defendant, for decision. Carbozo, J., dissented.
    MOTION to vacate orders made at a general term. The material facts are stated in the opinion.
    
      B. C. Thayer, for the plaintiff.
    
      A. Oakey Hall, for the defendant Duff.
   Sutherland, J.

This is a motion by the plaintiff to vacate and set aside two orders of this court in this action, made at the general term, one dated the 10th, and the other the 14th of June last, by the first of which the court set aside and vacated what in and by the order is called “the default taken by the plaintiff in above action, on the 20th day of April, 1869, at the.general term of this court,” and, further, ordered the case “to be orally heard,” at the then present general term, and that the cause be set down for argument on the second Monday of said June; and by the other of which orders, the court reversed, vacated and set aside the interlocutory judgment or decision of Justice Potter, made in this action, at special term, on the 29th day of June, 1866, and all proceedings had thereunder, and awarded a new trial to the defendant Duff.

The following facts appear from the papers submitted on this motion: ■

This is an equity action, and was tried before Justice Potter, at special term, and an- interlocutory decision or decree was made by him therein, on the 29th day of June, 1866, by which the defendant Duff was decided and declared to be a mortgagee and trustee of certain property, in his possession, and liable to account, &e., and by which a reference was made to a referee named, to take and state the account, upon certain principles stated, and by which the question of costs, and all questions, except those settled by the interlocutory decision, were reserved until the coming in of the referee’s report. On the 30th of March, 1868, and after the amendment of section 268 of the Code, by the act of April 25th, 1867, allowing and providing for a motion for a new trial at general term, on a case and exceptions, before final judgment, when the interlocutory decision or judgment directed an accounting or further proceeding; and while the accounting was pending before the referee named in the interlocutory decision or judgment, or any other referee substituted for him, and of course before there had been any report of a referee, or final judgment, the attorneys for the defendant Duff served the attorney for the plaintiff with a copy of a case and exceptions made, taken and filed in the action, with notice that a motion for a new trial would be made thereon, at the ensuing April general term.

The ease having been put on the general term calendar, and not having been reached, as must be presumed, the attorneys for the defendant Duff', and the attorney for the plaintiff*, both noticed it for argument at the April general term, 1869. At the April general term, 1869, on the 20th day of April, upon the case being called, and the attorney and counsel of the plaintiff appearing and answering, and no one appearing or answering for the defendant Duff, and upon the attorney and counsel for the plaintiff expressing a disinclination to take the defendant’s default, and requesting permission to submit the case, with his printed points, with liberty for the defendant Duff to submit points in support of his motion, the court permitted him to do so, and made an order to that effect, stating on its face that it was made on due proof of notice of argument for the first Monday of April, in and by which order it was directed that the defendant’s attorneys should have notice of such submission, and permission for the defendant Duff* to submit points.

On the 22d day of April, 1869,. the defendant Duff, his attorneys, and Mr. John Graham as his counsel, or one of his counsel, were served with written notices, by the attorney for the plaintiff, of such submission, which notices stated that the defendant Duff had liberty to submit points in support of his motion.

The account in the moving papers of what took place . at general term, when the case was called on the 20th of April, the order of the general term, and the notice subsequently given to the defendant Duff, his attorneys and counsel, does not permit a doubt that the court intended that the attorney of the plaintiff should submit, with his points, papers sufficient or requisite for the examination, and decision or disposition of the motion for a new trial on the case and exceptions; and that the attorney for the plaintiff did submit, and hand up to the court, copies, or papers purporting to be copies, of the case and exceptions, with his points; and that the court received such copies Of the case &c., with the points, for the purpose of deciding and disposing of the motion. Ho points were submitted, for or in behalf of the defendant Duff, before the adjournment of the general term for the term, nor was any motion made to the general term, before its adjournment for the term, for or in behalf of the defendant Dufij to be heard orally on the motion; but on the 26th day of April, 1869, after the general term had adjourned for the term, his attorneys in the action applied to a justice of this court, other than either of the justices who held the general term when the order of submission was made, and obtained from him an order, dated on that day, for the plaintiff or his attorney to show cause before him, at special term, at chambers, on the 28th of June, at 10 a. m., “why the default taken by the plaintiff herein, on the 20th instant, and referred to in the annexed affidavits, and also in the notice served bj^ the plaintiff’s attorney, under date of April 20th, 1869, a copy whereof is hereto annexed, should 'not be set aside and vacated, and why the case should not be ordered to be heard at the next general term, in the regular course of the calendar,” &c.

This order to show cause was obtained on two affidavits; one of Mr. Van Antwerp, as one of the attorneys for the defendant Duff, and the other of Mr. Hall, as counsel or associate counsel for him, which two affidavits were the affidavits referred to in the order to show cause, as annexed to it; and to which affidavits, and referred to therein and in the order to show cause, was annexed an alleged copy of a notice, of which the following is a copy:

[Title of cause.]
“Gent: You will please take notice that your motion for a new trial in this cause was this day submitted to the general term on the case and exceptions herein, and my printed points; and that you are at liberty to submit points in support of your motion.
Please furnish me with a copy of your points herein, and I will furnish you with a copy of mine.
Yours, &c., B. 0. Thayer,
Plaintiff’s Att’y.
To Messrs. Van Antwerp & James,
Att’ys for the defendant Duff.
Dated blew York, April 20th, 1869.”

In both affidavits the proceeding which took place on the 20th of April, 1869, at general term, when the case was called, no one appearing for the defendant Duff, was called “ a default taken,” and in both affidavits the alleged copy of a notice annexed, of which a copy is-above given, is referred to, as showing that that proceeding was a default taken.

On the return day of the order to show cause, the plaintiff’s counsel not appearing, the hearing of the motion was postponed by the justice who granted the order to show cause, until the 6th of May following.

A motion having been made by the plaintiff before another justice, for an order postponing the hearing of the motion by the defendant to set aside the alleged default taken by the plaintiff at the April general term, until the decision by the general term of the defendant Duff’s motion for a new trial, in which motion of the plaintiff an order staying proceedings had been granted, Duff’s motion to set aside the default alleged to have been taken at the April general term, was directed by the justice who granted the order to show cause, to proceed before him on the 25th of May, 1869.

The plaintiff’s motion to postpone the hearing of Duff’s motion until after the decision of the general term, was denied on the 20th of May, 1869, after a hearing, and the stay of proceedings vacated.

On the 25th of May Duff’s motion, both parties appearing by counsel, it is said, in an affidavit read on the part of the defendant Duff, was proceeded with, but not concluded. But it does not further appear what was done. On the 27th day of May the counsel of Duff obtained an order from the justice before whom the motion was pending, continuing and adjourning the motion to the 7th day of June (the first day of the next general term) following. By this order either party had liberty to notice the cause for a hearing at the next general term, and place the same on the calendar; but all other proceedings were stayed by the order, until the final decision of Duff’s motion so continued and adjourned. On the same day (27th of May) an order was obtained from the same justice, for the plaintiff to show cause, at the opening of the court on the first day of the next general term, (the first Monday and the 7th of June,) why the default' taken by the plaintiff on the 20th day of April last, at the general term of this court, should not be set aside and vacated, and the cause ordered to be heard at the said general term in the regular course of the calendar,” &c. Which order to show cause, as appears by a recital on its face, was granted on the affidavits and papers served, used and referred to, on the motion before the said justice, oh the order to show cause granted by him on the 26th of April last.

The attorney for the plaintiff was served with the orders of the 27th of May, and also with a notice of a motion to be made at the opening of the court, on the first day of the then next June general term, to set aside the default alleged to have been taken by the plaintiff on the 20th day of April last, and also with notice of argument of-Duff’s motion for a new trial at the opening of the general term on that day; which last mentioned notice the attorney for the plaintiff declined to accept, and returned, on the ground that there was no such motion for a new trial then pending; that the same had been submitted for decision, by order of the general term, on the 20th day of April, 1869, of which the attorneys of the defendant Duff had theretofore had due notice. o

At the opening of the next June general term, on the 7th of June, Mr. Hall, as counsel for the defendant Duff, made the motion to set aside what was called the default of the defendant Duff, taken on the 20th of April, the attorney for the plaintiff appealing, and reading and leaving with the court, or the clerk of the general term, a copy of the general term order of the 20th of April, an affidavit stating what took place when that order was made, substantially as the circumstances of the transaction or proceeding have been above stated, and a protest in writing against the court entertaining the motion, on various grounds, which it is not necessary specially to refer to.

Subsequently, and on the 10th of June, the motion was decided, and the next day the order dated the 10th of June, and called herein before the order of the 10th of June, was settled and made. Subsequently, and on the 14th of June, the case, or the defendant Duff’s motion for a new trial, having been put on the calendar, was called, and no one appearing for the, plaintiff, the order of the 14th of June was made.

When this order of the 14th off June was made, the justices who made the order of the 20th of April had not decided or made any disposition of the motion for a new trial on the papers which had been submitted to them, on making that order.

It does not appear that the defendant Duff, his attorneys or counsel, have ever submitted, handed up, or sent, points on the motion to the justices last referred to, or either of them, or have ever, any or either of them, expressed or intimated an intention or willingness to do so.

The two justices, who with the presiding justice, held the April general term, and made the order of the 20th day of April, were other than the two who, with the presiding justice, had been assigned to hold the June general term, and held it, and made the orders of the 10th and 14th of June.

There are other matters, which I have not specially referred to, in the papers; but I deem the facts which have been stated all that are necessary for stating and understanding the grounds on which I think the general term orders of the 10th and 14th of June should be vacated; which are:

1st. It is impossible to view the motion of the defendant Duff, to vacate and set aside what in the order of the 10th June, and the papers on which it was made, is called a default taken, as recognizing on his part that his case and exceptions and motion for a new trial had been submitted at the previous April general term, so that the justices who held that general term, and had the papers for decision, could decide or make any disposition of the case or motion, binding on him, Duff.

There was nothing in his motion papers (nominally and in form to set aside a default taken) which can be said to have been stated by way of excuse for not having availed himself of the privilege granted him, and of which he had notice, to submit points; nothing stated in them to show that he wanted further time to submit points; nothing tending to show that there were circumstances about his case, or questions in it, or features of his motion, making an oral argument necessary or advisable, other than the mere statement that he or his counsel desired an oral argument.

It is palpable that his motion to set aside what was called a default taken, and the order of the 10th of June, must be received as having been made on the ground that his default had been taken.

2d. His default had not been taken. The papers on this motion show that his default had not been taken. The order of the April general term shows it; the very copy notice annexed to the affidavits upon which the order to show cause was granted, and the order to show cause, and referred to in them, show it.

It is impossible to call the proceeding at general term, on the 20th of April, the taking of a default. Duff’s default was not taken. The attorney and counsel of the plaintiff declined taking his default. The court took the case for decision ; of which, and of his privilege of submitting points, Duff, his attorneys and one of his counsel, had notice.

3d. I think what took place when the case was called on the 20th of April, at the April general term, whether it be called a submission or not, gave the justices of this court, then present and holding the term; not only power to make a decision or disposition of the case and motion (until regularly reversed or set aside) binding on the plaintiff and the defendant Duff' both, but also made it their duty to decide or dispose of the case and motion, whether the defendant Duff', or his counsel, did or did not avail himself or themselves of the privilege of submitting points.

4th. If these justices had this power, and such duty was or had been imposed upon them, it is, I think, impossible to say that the general term that made the orders of the 10th and 14th of June had power to make them, for the motion for a new trial on the case and exceptions, when these orders were made, had not been decided or disposed of by the three justices who on the 20th of April had taken the papers for the purpose of deciding and disposing of the motion.

The question of power is not a question as to the power of the court as an entity or in the abstract. The question is not whether a general term of this court, held by Justices 0., I. and S., has, or has not, the same or as much power as a general term held by Justices 0. and 0. andB. Of course two general terms, so held, may be said tp have the same or equal power. But the question of power which, arises on this motion to vacate the orders of the 10th and 14th of June is, as to the power of the justices,' as administrators of the powers and duties of this court, to interfere with the exercise of the official powers or the performance of the official duties of each other, after, and when, the exercise of such powers, and the performance of such duties, have attached in a particular case, and before the powers have been exercised or the duties performed.

Of course there is no limit to the power of thinking. The June general term that made the orders of the 10th and 14th of June, may have deemed - the proceeding at the April general term, when the case was submitted, a default, or a default taken. It is plain that the April general term did not deem it a default, or a default taken, and that the defendant Duff’s default was not in fact taken.

But the question is not, what either of the general terms deemed the proceeding of the 20th April. The question of power is, whether the June general term, under the undisputed circumstances, by deeming or calling the proceeding of the 20th of April a default, or a default taken, had power to make the orders of the 10th and 14th of June, with the effect (I do not say design or intention) of relieving the justices who hold the April general term, of the power, and discharging them of the duty, of deciding or disposing of the defendant Duff’s motion for a new trial,, when it must be presumed it was being held under consideration by them.

I think it the plain duty of the justices who held the general term in April, to whom the papers were- submitted, and who made the order of the 20th April, notwithstanding the orders of the 10th and 14th of June, to decide and dispose of the defendant Duff’s motion for a new trial on the case and exceptions; and if the order of the 14th of June is permitted to stand, I do not see why there must not be two general term orders in the case, on the same motion for a new .trial, inconsistent with each other, whatever may be the decision of the justices who made the order of the 20th April; and I do not see how the plaintiff could be relieved, or saved, from the embarrassments which two such general term orders would cause, otherwise than by this motion, and its decision.

5th. But it is by no means necessary to say that the orders of the 10th and 14th of June were made without power. The general term of this court often vacates and modifies its own orders as inadvertently made, or on the ground that the court was misled by a mistake or misapprehension as to, or of, some material fact, or circumstance.

Irrespective of the question of power, I think the orders of the 10th and 14th. of June should be vacated, on the ground that we must or should presume them to have been made under a misapprehension of the proceeding, and the effect of the proceeding, on the 20th of April, which possessed the justices who then held the general term, of the case and motion of the defendant Duff, for decision, which misapprehension we must and should further presume arose from the unjustifiable misnomer of the proceeding of the 20th of April, by and in the papers on which the order of the 10th of June was granted. Of course, in vacating the orders on this ground, it is to be presumed that if the same justices who held the general term when the orders were made, had happened to hold the general term when this motion was made, they would have vacated them.

The orders, however, should be vacated, without costs either to the plaintiff' or the defendant Duff, as against eaeh other.

[New York General Term,

November 1, 1869.

Clerke, P. J.

I differ from Sutherland, J., so far as

he denies that the June term had power to make any disposition of the procedure at the April term.

* Whether that procedure be called a submission or default, I hold that the general term, sitting in June, were capable of annulling or modifying it at any time before the final decision of the justices who sat at the April term, on the papers then submitted to them.

As I said in my dissenting opinion on the motion at the June term, I considered it exceedingly inexpedient to interfere with the action of the April term; but I did admit that the justices composing the June term had the power to do so.

But the same power which they exercised in relation to the action of the April term, the justices composing the ¡November term possess in relation to the action of the June term; and, as I still consider the former an inexpedient, if not irregular,- exercise of power; and as it was plainly a default, caused by the misapprehension or error of the plaintiff’s attorney, I think, in so important a matter, that the plaintiff ought to have an opportunity of being heard. I therefore concur with Sutherland, J., in the conclusion at which he has arrived, irrespective of the question of power.

Cardozo, J.

I dissent. I agree with Judge Clerke that the last general term had the power which it exercised, and no reason exists to vary the discretion which it exercised.

Orders vacated.

Clerke, Cardozo and Sutherland, Justices.]  