
    HILLYER v. VANDEWATER.
    
      N. Y. Supreme Court, First District, Chambers;
    
    July, 1890.
    
      Memittitur; when, remittitur will be vacated to allow re-argument in court of appeals.] The judgment of the supreme court entered upon the remittitur of the court of appeals will not, where the latter court has not indicated a desire or willingness that such remittitur be returned, be vacated, and the remittitur returned to "the latter court in every case where the attorney of the defeated party states that he desires to apply to the court of appeals for re-argument. The vacating and return of the remittitur for the purposes of re-argument calls for the.exercise of the discretion of the court, and such discretion will be exercised only in those cases where in view of the decisions of the court of appeals relating to re-argument, there seems to be some chance that a party applying may secure a re-argument of his case.
    Motion to vacate a judgment entered upon a remittitur. and for the return of the remittitur to the court of appeals,
    
      The necessary facts appear in the opinion.
    
      Theodore F. Miller, plaintiff’s attorney, for the motion,.
    
      L. B. Bunnell, defendant’s attorney, opposed.
   Andrews, J.

This action was tried at special term, and1 judgment rendered dismissing the complaint. From such judgment an appeal was taken to the general term, which affirmed the judgment. An appeal was then taken to the court of appeals, which affirmed the judgments of the general and special terms. In accordance with the usual practice, a remittitur from the court of appeals was sent down, and judgment was entered upon it, making the judgment of the court of appeals the judgment of this court. A motion is now made for an order vacating such last named judgment, and directing the clerk to send such remittitur to the clerk of the court of appeals, in order that counsel for plaintiff may be enabled to make a motion before the court of appeals for a re-argument.

An application similar to the present one was made to the general term of the superior court in the case of Selden v. Vermilyea, and the question as to the power and duty of the inferior court upon such an application was thoroughly* considered by Judge Duer, who, speaking for the court, held that the superior court had no authority to grant such an application without the express assent or direction of the appellate court, authenticated by its certified rule or order. This decision was regarded as controlling in the case of Bogardus v. Rosendale Manufacturing Company (1 Duer, 592) and the case of Jarvis v. Shaw (16 Abb. Pr. 415), which cases came before the special term of the superior court. The same case is also referred to with approval by JudgeIngraham, who delivered the opinion of the general term of this court in Griswold v. Havens (16 Abb. Pr. 413).

It is claimed, however, by counsel for the plaintiff that these ca$es must be considered as overruled by Wilmindings v. Fowler (15 Abb. Pr. N. S. 86); but that case was a peculiar-one, and it is doubtful whether it should be regarded as overruling the cases above cited. An attorney had been charged with misappropriation of money, and the decision had gone-against him in the courts below and in the court of appeals.. Thereupon he applied to the court of appeals for a re-argument, and it was objected that the application was too late, as the remittitur had been sent to the court below. The matter appears to have been taken under advisement, and the chief justice subsequently delivered an opinion, which covers several pages, which was to the effect that the previous decisions of the court of appeals, affirming the orders which had been made in the courts below, was erroneous, and that there ought to be a re-argument. At the conclusion of his opinion, however, he stated that the-objection that the remittitur having been sent to the court below, the court of appeals had lost jurisdiction of the case, was well taken, and that the motion must be denied for that reason. He closed his opinion with the following observation : “ I see no way to avoid this objection unless the court below should see fit to vacate the filing of the order, in. which case, perhaps, we might regard it as though the act had never been done, but the propriety of such a course is-entirely discretionary with that court.”

Thereupon the motion was denied, but without prejudice ■ and without costs. Subsequently, the defendant applied to-the court below at special term, upon an affidavit and a copy of said opinion, and the court, after hearing counsel for both parties, ordered that the filing of the remittitur and the order of the supreme court making the same the order of that court, be vacated, and that the clerk return the remittitur to-the court of appeals for its further action. This having been done, a second motion for a re-argument was made to the court of appeals and granted, and the orders of the courts below were reversed.

It is to be observed that while the assent or direction off the appellate court to the return of the remittitur was not-authenticated by any rule or order, such assent was authenti'Gated by an opinion delivered by the chief judge of that court, which was presented to the special term of the supreme ■court when application was made to have the order entered upon the remittitur vacated, and the remittitur itself returned to the court of appeals; and I have no doubt that if, in any case, the court of appeals should in any manner indicate its desire or willingness that a remittitur, sent down and tiled with the county clerk, should be returned to that court, this court would consider that a proper case was presented for the -exercise of its discretion, and would at once order any judgment or order, which might have been entered upon the remittitur, to be vacated, and the remittitur itself be returned to the court of appeals.

The question is presented, however, in a case like the present one, where the court of appeals has not in any way indicated its desire or willingness that the remittitur should be returned, what principle or rule should govern this court in the exercise of the discretion which it undoubtedly possesses.

It certainly will not be claimed that the judgment entered upon the remittitur should be vacated and the remittitur returned to the court of appeals in every case where the attorney ■of the defeated party states that he desires to apply to the court of appeals for a re-argument. Such an exercise of dis-cretion would be disrespectful to the court of appeals, and very unfair to the successful parties.

If, then, such discretion is not to be exercised in every case where an application of this kind is made by an attorney of the defeated party, in what cases should it be exercised ? The attorney for the plaintiff claims that the question is not to be ■determined by considering whether or not it is probable that the court of appeals will direct a re-argument; but, unless this feature of the matter is to be taken into consideration, I am at loss to know what principle or rule is to be applied in disposing of such an application as this. If, in any case, in view ■of what the court of appeals has said as to the grounds upon which re-arguments would be ordered, there appears to be •some chance that the party applying may secure a re-argument in his case, it would seem to be a reasonable exercise of discretion to vacate the judgment and direct the clerk to return the remittitur; if, however, in view of the decisions of the court of appeals in relation to re-arguments, there appears to to be no possibility that a re-argument will be directed, it seems to me that an application to vacate the judgment and return the remittitur should not be granted.

In Mitchell v. Mount (32 N. Y. 702) the courts of appeals-said: “Motions for re-argument should be founded on papers showing clearly that some question, decisive of the case and duly submitted by the counsel, has been overlooked by the court, or that the decision is in conflict with an express-statute, or with a controlling decision to which the attention of the court was not drawn, through the neglect or inadvertence of counsel.” In Marine Nat. Bank v. City Nat. Bank (59 N. Y. 73) Allen, J., said : “ This court proposes to adhere to the rule in Mitchell v. Mount (32 N. Y, 702), and motions for re-argument will not be entertained unless-brought within it.”* The same doctrine was repeated in 72 N. Y. 259.

In the present case, so far as I can discover from the-moving papers, the only grounds upon which the application' is made are: (1) that a majority of the judges of the court of appeals did not unite in a single opinion, that while the-opinion written by Judge Finch, who wrote for affirmance, was concurred in by Chief Judge Huger and Judge-Andrews, Judge Gray, who also wrote for affirmance, delivered an opinion placing his vote upon a different ground from that taken in the opinion written by Judge Finch : and (2) that Judge Gray was not present during the whole-of the oral argument before the court. The grounds, therefore, upon which the attorney proposes to move for a re-argument, are not among those mentioned in Mitchell y. Mount (supra), and as the court of appeals has repeatedly declared that motions for re-argument will not be entertained unless brought within that case, it is impossible to escape the conclusion that the motion for a re-argument in this case will not be granted.

It is also to be observed that this case evidently received the most careful and thorough consideration in the court ■of appeals. The case was held under consideration for •several months, and three opinions were delivered, and those opinions plainly show that the different views entertained by the judges were the subject of considerable discussion by them. Judge Gray states in his opinion that he placed his vote upon the ground that the disposition of the residuary •estate can be upheld and effectuated by the executors under •a power in trust. The question whether there was a power in trust was, it appears, discussed in the printed points of both parties, and that question evidently was the subject of ■consideration and discussion, for Judge Finch in his opinion ■says : I have not been able to satisfy myself that the testatrix failed to create a trust by the terms of her devise to her -executors, and gave merely a power in trust which was sufficient for all the purposes of the wilL I admit that very much may fairly be said in support of that consideration; but since I have reached the conclusion that the trust, if ■created, was valid, and did not unduly suspend the power of alienation, I prefer to put my opinion and my vote upon that basis.”

The New York reports are full of cases in which the. judgments of the lower courts have been affirmed by the court of appeals, where several opinions have been delivered in the latter court, and where che grounds upon which the ■affirmance was based were as disimilar as those assigned in ■the present case; but I doubt whether any counsel has ever ventured to apply to that court for a re-argument upon that .ground alone. If such application ever has been made, I am very certain that it has been denied. And in view of the fact that the question whether the will contained a power in trust was discussed upon the points of both parties, was •evidently considered by the different judges, and that Judge Gray has written a separate opinion, placing his vote upon ■the ground that the will did not contain such a power, I think that for this court to now vacate its judgment and •direct the clerk to return the remittitur, upon the ground that Judge Gray did not hear the whole of the oral argument, on appellant’s counsel, would be disrespectful to the court of appeals, and unfair to the successful party.

The motion will be denied, with $10 costs.  