
    HALL against EMMONS.
    
      New York Superior Court; General Term,
    March, 1870.
    Renewal oe Motion.—Leave to Renew.
    An order which is in its nature appealable, should be reversed on appeal, if it appears from the record that it was granted by the judge on substantially the same grounds on which a previous motion, made before another judge, had been denied, and leave to make the second motion was not obtained before making it, nor specifically asked in the notice of motion.
    Where a motion is denied upon its merits by one judge, and leave to renew is not reserved, nor subsequently applied for, a second motion upon the same grounds should not be granted by another judge.
    As a general rule, leave to renew cannot be granted, upon the renewal of a motion, and under the general prayer for relief.
    Rule 23 of the court,—which forbids a second application upon the same facts to another justice after one justice has refused an order,—applies to motions on notice as well as to ex-parta applications.
    Appeal from an order.
    The action was brought upon an undertaking executed by the defendants John Emmons, Jr., and Han-ford Smith, upon the arrest of the defendant-, James L. Paine, under an order of arrest granted in an action, wherein the plaintiff herein was plaintiff, and the defenfendant, James L. Paine, was defendant. Upon affidavits showing that said James L. Paine had surrendered himself to the sheriff, without disclosing however, the precise time of such surrender, and that he was insolvent, the defendants in this action, on the 27th day of January, 1870, procured an order requiring the plaintjff to show cause the next day, why the action should not be discontinued, or why the defendants should not have time to plead to the complaint therein, or why they should not have such further or other order or relief as to the court should seem meet.
    On the return day plaintiff appeared by counsel and showed that a similar motion had been made in the same action, during the preceding August special term of the same court, held by another judge; that on that occasion, defendants upon substantially the same grounds, had moved for a “ discontinuance of the action as to all the defendants, and that the defendants Smith and Emmons be absolutely released and discharged from all liability and responsibility upon or incurred by virtue of, the undertaking, &c., or for such other order or relief in the premises as to the court shall seem meet and properbut that the court, after a hearing of all parties, had denied the motion upon the merits and in all its parts. Plaintiff, therefore, contended that defendants could not renew the motion without leave first • obtained for that purpose.
    The objection was overruled and an order made, under the prayer for other and further relief contained in" the order to show cause, that the defendants have leave to surrender the defendant James L. Paine, within ten days, into the custody of the sheriff. From this order plaintiff appealed.
    
      Stephen A. Walker, for the plaintiff, appellant.
    
      Alex. H. Reavey, for the defendants, respondents.
   By the Court.—Freedman, J.

In the case of the Bank of Geneva v. Reynolds (33 N. Y., 160), the court of appeals held, that an order allowing bail to surrender the principal in their exoneration,, is appealable forth e reason that it affects a substantial right and in effect determines the action and prevents a judgment from which an appeal might be taken. ' Such being the law of this case, and it appearing from the record that the first motion was made upon substantially the same, if not- stronger grounds, as the second motion, I am of the opinion that the order appealed from, which granted, under the general prayer for relief, a relief not specifically asked for and not forming a strictly legitimate object of the principal motion, should not be permitted to stand.

The first motion was decided after a hearing of all parties upon the merits, and denied in all its parts. Leave to renew was neither reserved, nor subsequently applied for.

Before, and since the Code, it has been the practice that a special motion cannot be renewed' upon the same or substantially the same facts without leave of the court for that purpose obtained (Mitchell v. Allen, 12 Wend., 290; Dollfus v. Frosch, 5 Hill, 493; Allen v. Gibbs, 12 Wend., 202; Willet v. Fayerweather, 1 Barb., 72; Bellinger v. Martindale, 8 How. Pr., 113; Cazneau v. Bryant, 4 Abb. Pr., 402; Snyder v. White, 6 How. Pr., 321; Mills v. Thursby, 11 Id., 114; Smith v. Spalding, 30 Id., 339).

Thus, it has been held, that a party cannot, by omitting to enter the order, obtain a right to renew a motion (Peet v. Cowenhoven, 14 Abb. Pr., 56.

It is undoubtedly true that the decision of a motion is not to be considered as res judicata, and that there are special occasions, on which a motion may be reheard, for instance, when the order is unappealable.

But as a matter of orderly practice it should never be done, except upon leave. When that is applied for, it is discretionary with the court to allow a renewal of the motion, on the same or additional papers, and its decision in this respect will not be reviewed upon appeal (White v. Munroe, 12 Abb. Pr., 357; Smith v. Spalding, 30 How. Pr., 339; Adams v. Bush, No. 2, 2 Abb. Pr. N. S., 112).

But leave will not be given to renew a motion .to enable a party to insist on facts known to him but not insisted. upon at the hearing of the original motion (Pattison v. Bacon, 12 Abb. Pr., 142; S. C., 21 How. Pr., 478).

And the discovery of new evidence, even in support of the matter previously urged, has been held to give no absolute right to a renewal of the motion (Hoffman v. Livingston, 1 Johns. Ch., 211).

As a general rule, however, leave will not be withheld if, in the circumstances of the opposition, there is anything to excite suspicion of unfairness, or a belief that the moving party was taken by surprise.

By rule 23 of the general rules it is further provided, that if any application for an order be made to any judge or justice, and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application, upon the'same state of facls, shall be made to any other judge or justice; and if, upon such subsequent application, any order be made, it shall be revoked, &c.

By section 401 of the Code, an application for an order is styled a motion, and the same section refers to motions which can only be made upon notice, as well ns to such as may be made without notice.

Section 400 provides that the term “order” shall include every direction ofoa court or judge, made or entered in writing, and not included in a judgment.

The construction, therefore, of the 23rd rule, above referred to, in connection with sections 400 and 401 of the Code, would seem to lead to the conclusion that the rule applies to motions on notice as well as to ex-parte applications; and inasmuch as such applications of the rule to motions will greatly tend to maintain and perpetuate the harmony and kind feeling which should always exist "between the members of the same court, attorneys should not be permitted to disregard it. If the defendants in this case felt aggrieved by the first order, they might have appealed or applied for a new argument. They declined to do either.

The order appealed from should therefore be reversed with costs.  