
    The William Skinner Manufacturing Co., Respondent, v. David J. Fagenson et al., Appellants.
    (Supreme Court, Appellate Term,
    May, 1902.)
    Order of arrest — Motion, to vacate on. original papers, how made in the First Judicial District — Code C. 3?., §§ 568, 769.
    A motion to vacate an order of arrest, made in an action triable dn the First Judicial District, upon the papers on which it was granted may be made before a judge in that district other than the one who granted the order.
    Section 568 of the Code of Civil Procedure, when read in connection with section 769 thereof, means that an application to vacate an order of arrest founded only upon the papers on which the order was granted must, when made to the court, be upon notice, but, when made to the judge who granted the order, may he upon or without notice as he may deem proper.
    Skinner Manf. Co. v. Fagenson, 36 Misc. Rep. 836, reversed.
    Appeal by the defendants from an order of the General Term of the City Court of the city of Few York, reversing an order of the Special Term of said court.
    Goldfogle, Cohn & Find (Henry M. Goldfogle, of counsel), for appellants.
    A. B. Fletcher (Joseph M. Lesser, of counsel), for respondent.
   Truax, J.

To hold that a motion to vacate an order of arrest upon the papers upon which it was granted can he made only to the justice who granted it, would, in many instances, lead to a miscarriage of justice. A justice of the Supreme Court outside of the Eirst Judicial District may, and it often happens that he does grant an order of arrest in an action pending in this district. By section 769 of the Code of Civil Procedure, a motion in an action triable in the First Judicial District must be made in that district, but if the motion can be made only before the justice who granted the order of arrest in the first district it would often happen that the person against whom the order of arrest had been issued would be unable to have the order vacated on the papers on which it was granted. And moreover every court of record has the inherent power to vacate its own orders, judgments and proceedings in order to prevent a perversion of justice or to frustrate oppression. Levy V. Loeb, 5 Abb. N. C. 157; Deitz v. Field; 41 N. Y. Supp. 1087.

Section 568 of the Code of Civil Procedure, read in connection with section 769, means that an application to vacate an order of arrest founded only upon the papers upon which the order was granted when made to the court must be made upon notice, but when made to the judge who granted the order of arrest it may be made upon notice or without notice, as that judge deems proper. This procedure has obtained for years in cases of arrest, injunction (Code Civ. Pro., § 626), and attachment (id., § 682.).

An examination of the papers on which the order of arrest was granted shows that the justice who vacated the order of arrest was right in so doing.

The order of the General Term of the City Court is reversed, and the order made at the Special Term of the City Court vacating the order of arrest is affirmed, with costs.

Friedman, P. J., and Gildersleeve, J., concur.

Order of General Term reversed, and order of Special Term affirmed, with costs.  