
    DAVID C. CARLETON, Appellant, v. THE MAYOR, ETC., OF NEW YORK, Impleaded with THOMAS DARCY, Respondents.
    
      Decided March 3, 1884.
    
      Ejectment —writ of possession.
    
    Judgment having been rendered for plaintiff in an action of ejectment, he went into possession of the premises thereunder, and said judgment was affirmed by the general term. Thereafter the court of appeals reversed said judgment aud ordered that the complaint be dismissed and said judgment was subsequently made the judgment of this court, but no provision for restitution was made therein.
    
      Held, that it was within the general powers of the court at special term to issue a writ of possession to render said judgment effectual.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    There are two appeals in this action, both by plaintiff, one from an order of this court, made at special term, February 21, 1883, that a writ of possession issue directing the sheriff of New York county to deliver to the defendants, the mayor, &c., the possession of the premises the right to which is in controversy in this action ; and the other from an order of this court made at special term, April 2, 1888, denying plaintiff’s motion to vacate the above mentioned order, and to stay all proceedings under it.
    A motion by plaintiff to vacate the judgment and for a new trial, was granted upon payment of costs within ten days. Further facts appear in the opinion.
    
      H. B. Philbrook and Erastus Cooke, for appellant.
    I. If the plaintiff was entitled to a new trial and the vacation of the judgment, the defendants could not be entitled to a writ of possesion, or what would vacate or defeat the effect and intention of such order.
    II. The defendants asked for no writ of possession. Their motions were only to amend the order on the remittitur that they might have such a writ in case the motion was denied.
    III. —The remittitur did not order a writ of restitution on the delivery of the possession. This could only be done by the court of appeals or the general term of this court, under the Code. The special term had not the right to do it.
    Nor could the special term enlarge Judge Freedman’s order, made six years before, opening the default and allowing the city to answer. The city obtained on that motion all that it asked and all the court intended to give, and the defendants, the mayor, &c., acquiesced in the order and proceeded to trial under it. It is doing a great deal to defeat the plaintiff’s fight to a new trial and the advantages the law and court had given him, to give the defendants the possession of the property on the ground that Justice Freedman, in making the order, might have done so, six years before; and this without the defendants asking for it.
    As a question of law, it is in reality settled by the decisions of the court of appeals in Young v. Bush, 18 Abbott, 171, and in Marvin v. Brewster Iron Mining Co., 56 N. Y. 671. The special term had no right to grant the writs.
    IV. Generally, where a judgment which has been executed, is afterwards ‘reversed or set aside, the court will order restitution. In the case of a new trial in ejectment, however, the statute establishes a different rule. 2 R. S. 310, § 41. Vacáting the judgment under this statute shall not in any way affect the possession obtained under the judgment. But the defendant’s right to a writ of possession depends upon his having a judgment.
    Then, according to the rule claimed by the respondents, if the defendant had been put into possession under his judgment, the vacating of that judgment would entitle plaintiff to restitution—which would leave him where section 41 placed him, until final judgment under the new trial. As this case stands, however, there is nothing to restore. The plaintiff remains in possession under his first recovery, which possession, the statute says, shall not be disturbed except under a judgment in favor of the defendant. Such a judgment does not exist.
    
      
      George Andrews, corporation counsel, and T. B, Clarkson, for respondents.
    There can be no doubt that after the judgment of the court of appeals was made the judgment of this court, these defendants were entitled to be restored to the possession of the premises. Plaintiff had obtained possession of the premises by the process of this court, issued upon his judgment by default obtained September 26, 3876. That judgment had been vacated by this court on the default being opened in March, 1877, yet, by force of the statute, he still held possession (R. S. part 3, chapter 5, title 1, § 37) [41], Then followed the judgment of this court of December 30, 1880. When this judgment was reversed and the plaintiff’s complaint was dismissed, plaintiff’s possession had nothing but the statute to stand on. The judgments of the court, by which he held possession, were gone. One was vacated, the other reversed. But this same section 37 [41] provides that “if the defendant recover in any new trial hereby authorized” (that is, authorized by that title), “he shall be entitled to a writ of possession in the same manner as if he was plaintiff.” It was under this section that defendants were granted the order appealed from. Plaintiff had obtained possession under a judgment by default. A new trial was granted under section 34 [38] of the above chapter and title of the Revised Statutes. On this new trial a verdict was rendered, on which this court directed that the plaintiff have judgment. But the court of appeals reversed this judgment, it said in effect that the judgment ought to have been for the defendants, and judgment was accordingly entered for them, dismissing plaintiff’s complaint—turning him out of court as having no cause of action. The defendants, therefore, have recovered in a new trial mentioned in said section 37 [41], and are entitled to the writ of possession authorized by the order appealed from.
    Plaintiff opposed defendants’ application on the ground that he applied for a new trial. But that was no defense to plaintiff’s motion. As the matter stood at the time the motion was argued, no new trial had been granted, and the defendants were entitled under the statute to their order. This court, on appeal, is to decide whether the order appealed from was, at the time it wras made, a proper one. It cannot take into consideration what has occurred since. But even if this court can take into "consideration the fact that a mew trial has been granted to plaintiff, that is no ground for reversing this order. The same section 37 [41] is the only statute on which plaintiff can base his right to retain possession. The plaintiff did take possession of the premises by virtue of a recovery in ejectment—that is, under his judgment obtained by default on September 26, 1876. On application of defendants, a new trial was then granted under the title and chapter of the Revised Statutes heretofore referred to, but the plaintiff still held possession. We claim, then, that the law was exhausted. On this new trial plaintiffs obtained judgment, and they are entitled to their writ of possession. The first part of the section has been complied with, and its office is ended. The last clause now comes into force, and its command is peremptory.
    Respondents call the attention of the court to the form of writ- found in Burrill’s Appendix (2d edition, p. 589, § 1159). This form is changeable to suit either of two cases: 1st. “Because that” (the original) “writ did wrongfully, unadvisedly and erroneously issue;” 2d. “Because the judgment upon which that” (the original) “ writ did issue hath since that time been wholly reversed, annulled,” etc.
    The court possesses the power, when its judgment is reversed or when in any manner it acquires knowledge that its writ of possession did wrongfully issue, to issue a writ of restitution. A judgment is not necessary to support a writ of restitution. The order of the court, made on its acquiring knowledge that its former writ was improperly issued, is a sufficient basis. This not only has long been the law, as appears from the standard authority referred to, but it is- now enacted in the Code of Civil Procedure (§ 1323), that “where a final judgment or order, is reversed .... upon appeal, .... the general term of the same court .... may make or compel restitution.....”
    
      Respondents, therefore, claim that under section 37 [41] of the statute before referred to„ they are entitled to the writ of possession ; but that if the court should feel any doubt on the point, under respondents’ original application, wherein they asked for other relief, this general term may modify Judge Ingraham’s order so as to give respondents an order under section 1323 of the Code of Civil Procedure, that plaintiff restore to the mayor, &c., the possession of the premises within a given time. Then, in case of refusal, plaintiff can be punished for contempt or a precept may issue to the sheriff.
    But whether respondents are to have any relief, depends on the construction and effect the court shall give to section 37 [41], If the court shall decide that plaintiff, having taken possession of the premises by virtue of a recovery in ejectment and retaining possession, notwithstanding that judgment was vacated on application of defendants,—that now when defendants have recovered in a new trial authorized by section 34 [38], he can still retain possession by merely getting the judgment against him and in favor of defendants vacated, then these defendants are not etitled to the relief demanded. But if the court shall give effect to every part of said section 37 these defendants are entitled to some relief.
   By the Court.—O’Gorman, J.

After some preliminary litigation of this action, not necessary to be now considered, a verdict was, on June 9,1879, rendered herein by a jury in favor of the plaintiff on trial of an issue of fact establishing the plaintiff’s title to a certain lot of land in 120th street in the city New York, subject to the opinion of this court at general term. Afterwards on December 30, 1880, the general term ordered judgment in favor of the plaintiff for the recovery of the said lot and for costs. The mayor, etc., of New York appealed therefrom to the court of appeals ; and the court of appeals, on or about the 15th of December, 1882, reversed said judgment, and ordered that the plaintiff’s complaint be dismissed with costs. On the 3d day of January, 1883, the judgment of the court of appeals was made the judgment of this court.

The plaintiff gave notice of a motion to be heard at the special term of this court on January 18,1883, for an order vacating the said judgment and for a new trial of the action, under section 1525 of the Code of Civil Procedure. The mayor, etc., also noticed a motion to be heard at special term on the same day, for an order that said judgment of the court of appeals, and also the judgment of this court entered thereon, should be amended, so as to award to the defendant, the mayor, etc., restitution of the premises. These motions were heard together, and on the 21st day of February, 1883, an order of the special term was entered (Ingraham, J.), that a writ of possession issue to the sheriff, etc., directing the delivery to the defendants, the mayor, etc. of the possession of said 'premises. From this order the plaintiff has appealed.

The plaintiff argues that on the judgment of this court, as it now stands, there is no authority for such an order, because the judgment as entered does not in terms provide for the issuing of a writ of possession. The only claim which plaintiff can set up to the right of possession of the lot in question, depends oh the judgment in his favor obtained on and before June 9, 1879, and the judgment of the general term of December 30, 1880, affirming the same. But these judgments were reversed by the court of appeals on December 15,1882, and thereupon ceased to have any force or vitality. The case stood as if they had never existed.

If it had been in terms provided in the judgment of the court of appeals, that the defendants, the mayor, etc., should recover possession of the lot, and that a writ of possession should issue against the plaintiff therefor, no question as to the propriety of that step by this court could well have arisen. But notwithstanding the absence of these words in the judgment, the power to issue the writ of possession, is a consequence of the judgment, and existed, in my opinion, in the special term, in order to carry out the necessary logical effect of the judgment, and revder it effectual.

The order of February 21,1883, directing the issue of a writ of possession of the premises in question, to the mayor, etc., as landlord of the defendant Darcy, appealed from by the plaintiff, is, therefore, affirmed, without costs.

As to -the order of the special term, granting a new trial, that question was disposed of by the decision of this court made on May 9, 1883.

Sedgwick, Ch. J., and Freedman, J., concurred.  