
    CATHARINE McGARRY, Administratrix, &c., Plaintiff and Appellant, v. THE BOARD OF SUPERVISORS, &c., Defendants and Respondents.
    A question relating to a mere irregularity cannot be examined on appeal from a judgment. Irregularities in the proceedings can be corrected only on motion made at Special Term.
    Where, on an appeal from a judgment, it was objected that a consent to a substitution of a party defendant, made by the attorney of record, was ultra vires, the Court is bound to assume that the consent was sufficient; and a judgment should not be reversed on that account. Per Monell, J.
    A motion for a reargument in such a case should not be granted. The Court will not order a reargument where it would impugn the correctness of a former decision. That would be to allow, in effect, an appeal from one set of judges to another set of judges of the same Court. And such a practice would impair, if not wholly destroy, the harmony which ought to exist in courts of justice.
    The cases stated in which a reargument of a case on appeal may be allowed.
    Before Monell, McCunn, and Freedman, JJ.
    
      [Decided May 14, 1869.]
    This was a motion for a reargument of an appeal.
    The action was brought originally against the Mayor, &c., of the City of New York to recover damages for the death of the plaintiff’s intestate, occasioned by the alleged negligence of the servants of the defendants. The Mayor, &c., appeared, and answered the complaint.
    The issues came on for trial before Mr. Justice McCunn and a jury, when the plaintiff’s counsel moved to amend the summons and complaint, “ pursuant to a consent signed at the office of the Corporation Counsel,” by substituting the Board'of Supervisors of the County of New York, as defendants, in the stead of the Mayor, &c. The motion was granted, and an order in form entered by the Clerk.
    The trial then proceeded, and resulted in a verdict against the defendants. An appeal was taken to the General Term, and a case made presenting the proceedings on the trial.
    
      The General Term reversed the judgment and vacated the order allowing the amendment, on the sole ground that the consent of the Corporation Counsel was ultra vires and void.
    
      Mr. James R. Whiting for appellant.
    
      Mr. Richard O’Gorman for respondent.
   By the Court:

Monell, J.

It is entirely clear to me that the ground upon which the General Term placed its decision was not presented by the appeal, and could not properly be considered. There teas no appeal from the order allowing the amendment, nor any objection made to substituting the Supervisors as defendants. Upon an appeal from a judgment, only questions of law can be raised, and such questions must be presented in the form of objections and exceptions.

Whether the defendants have been properly summoned in the action, cannot be examined on an appeal unless the objection was taken below, and then the objection and exception must appear in the case.

If in this case the consent of the Corporation Counsel was ultra vires, then undoubtedly the Supervisors were not properly in court, and all the proceedings, including the verdict and judgment, were wholly void; and the remedy was by motion at Special Term, to vacate all the proceedings. Such motion can be made at any time now, on proof that the Supervisors have not been summoned to defend the action, and, in my judgment, it is the only remedy they have.

The printed case contains no objections or exceptions, nor the statement of any fact, which could warrant the General Term in reversing the judgment, on the ground that the amendment was allowed upon insufficient authority. As the summoning of the defendants relates to the regularity of the proceedings, it will be assumed that it is regular until it otherwise appear. Therefore, in the case, as it was presented to the General Term, the Court, it seems to me, was bound to assume, in the absence of any objection to the validity or sufficiency of the consent, that it was sufficient, and should have left the defendants to their motion to have the judgment vacated.

But the General Term decided otherwise, and held, in a written opinion, that the question was before them, was sufficiently presented by the appeal papers, and might be considered. It was examined, and after deliberation the verdict and judgment set aside.

The question, therefore, is whether, under these circumstances, another General Term will order a reargument, the effect of which will be to open the appeal for a reexamination, and place it in the power of the Court to reverse the decision already made.

The grounds upon which a reargument may be applied for are fully stated in the cases of Newell v. Wheeler (4 Rob., 190), and of Trinity Church v. Higgins (id., 372), and in the ease of Mount v. Mitchell (32 N. Y. R., 702). Those grounds are of a nature that the Court, entertaining the motion, need not impugn the correctness of a former decision made upon the facts and the law as it was before the former Court.

For, as was said in Trinity Church v. Higgins, supra, it would be indecorous to allow what would be substantially an appeal from one set of judges to another set of judges of the same Court. Hnless, therefore, it is alleged that the former Court overlooked some material fact or statute, or failed to notice some important legal question or recent decision, it would be subversive of every good end to subject its- decisions to a new examination by a different set of judges. Indeed it would greatly impair, if not wholly destroy, the harmony which ought to exist in courts of justice, and which alone can render their administration effective and useful.

Should we grant the motion of this case we should, in effect, say that the former General Term made an erroneous decision upon a question which they had as much right to say was properly and sufficiently before it as we have to say that, in our judgment, it was not properly or sufficiently before it.

The result would .be that one term of the Court would reverse the decisions of another term, and the administration of justice would become a by-word and a reproach.”

But the plaintiff is not without a remedy. An appeal can be taken to the Court of Appeals, and the error, if there be any9 corrected there. Should the plaintiff deem it advisable to have it corrected in that way, a reversal of the decision of the General Term, and an affirmance of the judgment entered on the verdict, would still leave the question of the regularity of the proceedings to bring the defendants into court to be presented on a motion to set the proceedings aside; and if the Court, on such motion, should decide that the consent of the Corporation Counsel-was ultra vires, the judgment and verdict would fall to the ground.

The motion for a reargument should be denied.

McCunn, J.

(dissenting). The motion was for a reargument, and such motion is addressed to the discretion of the Court in the exercise of its equitable power to interfere to prevent a failure of justice.

If the case were fully .and fairly presented and considered, and deliberately decided, and no circumstance of surprise or fraud or mistake appear in the affidavit, the Court will not interfere merely to afford the party moving another chance of success. But the affidavit here discloses a signal instance of surprise to the plaintiff, and shows further that, except the Court interpose at this stage of the cause, and in the manner solicited, an irreparable failure of justice may occur.

The judgment in favor of the plaintiff was reversed on the ground that the Court had no power to allow amendment of the summons and complaint substituting the Board of Supervisors as defendants instead of the Mayor, Aldermen, and Commonalty.

But the legal representative of the Board, and of the Mayor, &c., consented to the substitution, and the plaintiff’s counsel, contemplating his official character, had a right to suppose that such consent was within the authority of the Corporation Counsel. To have distrusted his authority would have implied au imputation on his integrity, and, since he gave the consent and thus betrayed the plaintiff into a particular course of conduct, he would be estopped on familiar principles to dispute the authority he represented himself to possess. This was the rule held by this Court in the case of Parker v. Union Life Insurance Co. (N. Y. Transcript of 10th March, 1869). See also, the case of Wolf v. Security Fire Insurance Co. (39 N. Y., 349), where the same doctrine is propounded.

The rights of third parties are involved, and we must decide the motion independently of the equivocal action of the learned Assistant Corporation Counsel. The plaintiff indisputably stands upon an unimpeachable equity. The time was when she might have retreated from her position in pursuance of the regular practice, and have regularly brought the proper party defendant before the Court, to wit, the Corporation of the City of New York. She was betrayed by the assent of the ostensible law officer of the city, and of the Board of Supervisors, into an exceptional amendment of the process and pleadings; and if she now be denied an opportunity to recall her improvident acquiescence she may never have a chance fairly to contest her claim, because the time within which she had a right to bring her action against the corporate authorities has elapsed. It appears by the affidavit of her attorney that the Assistant Corporation Counsel not only gave consent to the amendment, but forbore to intimate a doubt as to his authority so to consent, until the validity of the judgment was denied on appeal.

It appears further, that the plaintiff’s attorney, naturally embarrassed by this unexpected development of the Corporation Counsel, omitted to present the effect of section 173 of the Code of Procedure as bearing on the amendment in controversy. Bow this section of the Code declares that before or after judgment, in furtherance of justice, &c., &c., the Court can amend any pleading or process, by adding or striking out any part, or correcting a mistake in the names.” And this section, I hold, covers almost all cases which can arise, and most certainly covers the one at bar. In a court such as this—a court of general jurisdiction—it is unnecessary to prove a service of process on defendants, or to prove that they appear in court. The presumption -always is, that the judgments rendered by such courts acquire jurisdiction over the person.

This is the doctrine laid down in Cowen & Hill’s notes, 905 and 906, and also in the case Hatcher v. Rocheleau (18 N. Y., 89 to 95).

This Court, in a case of this kind, is bound to assume that it had jurisdiction over the persons, and the subject-matter in dispute.

Again, no questions can be raised on this appeal except such as are presented by the exceptions, and no question involving a point of jurisdiction can be urged unless presented by the exceptions appearing in the ease. This rule being well settled and, as no such exceptions appear in this case, it is quite apparent that upon the former hearing a mistake was made' in allowing the point to be raised without such exceptions.

Indeed, no question of regularity or jurisdiction can be raised for the first time on appeal under the operation of this rule (Willis v. Waite, 25 N. Y., 577). Nor can I conceive how the question of jurisdiction can be raised at all. The only point that can be made is an unwarranted question, involving the right of this Court to exercise its powers; it has been brought into discussion, and the Court has ruled that it has no power to make an order in this action amending the process and pleadings, by striking out the Corporation of the City of New York and substituting the Board of Supervisors as defendants. How the ruling is palpably erroneous, for it is a direct subversion of statutory powers conferred upon the Court. It not only tends to warp them, but in fact abolishes them.

The -order in question was a simple order, of amendment made pursuant to a statutory power which enables .this Court, at any time during the pendency of the action, to amend any pleading by adding or striking out the name of any party, and the order granted herein was entirely within the scope and provision of that section, which, as I have said before, is broad enough to

cover almost every conceivable case which can arise and call for the interposition of the Court; this rule was applied in the case of Sherman v. Fream (8 Abb., 33). Hay, more of our courts have held, and it is the correct theory, that section 173 enables courts to bring within their jurisdiction any person, even involuntarily, and substitute him in place of another defendant, where it appeared that the action could not succeed against one defendant, by striking out his name and substituting another in his stead, and directed the answer of the defendant, whose name was stricken out, to stand as the answer of him brought in, and thus wielding jurisdiction over him without the service of process upon him (Fuller v. The Webster Fire Ins. Co., 12 How., 293).

But that question does not arise in this ease; the order made herein was made upon consent and in open court. The Judge below, therefore, acted upon a solemn agreement, and by making it a part of the iiles of the Court, the learned Justice simply gave it vitality by and at request of both parties. After the amendment was granted, upon the consent, the Counsel for the Supervisors showed an unreserved submission to the jurisdiction of this Court; he goes on and litigates the issues raised by the pleadings as amended by the order. He joined issue upon the question of negligence, and appeared and tried the cause; this alone, without a consent, would give the Court jurisdiction over their persons entirely sufficient to enable it to render judgment against them.

Under these circumstances, and believing that the former Court misunderstood the position of the parties, the plaintiff has the clearest and strongest, possible equity to a reargument.

It is urged by my learned brethren, that to grant a rehearing in this case might open the door for confusion; but where the mistake in law is so glaring, I think it is the duty of the Court promptly, no matter what the consequence may be, to correct the error if it lie in their power this power we have), instead of subjecting this widowed litigant to the delays of an appellate court.

I am for correcting the error on the spot.  