
    First National Bank of Union Mills, Resp’t, v. Judson H. Clark, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed September, 1886.)
    
    1. Practice — New trial—Motion tor, on minutes op trial judge— Code Civil Procedure, § 999—Non-suit.
    A non-suit having heen ordered on the motion of the defendant, the plaintiff moved for a new trial upon the judge’s minutes, which motion was entertained by the trial judge and denied; from that order the plaintiff appealed to the general term, which appeal is yet pending; subsequently the plaintiff moved, at a special term held by the trial judge, for an order vacating the order entertaining plaintiffs motion for a new trial, and also the order denying the same. An order was granted setting aside both of these, and from this the defendant appeals. Held, that by Code Civil Procedure, § 999, the trial judge may in his discretion entertain a motion upon his minutes at the same term at which the trial was had to set aside a verdict and grant a new trial upon exceptions; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law; but that there being no verdict in this case, the_trial judge had no jurisdiction, and the order denying the new trial was void.
    S, Power op court to correct an error in the mode op procedure— Code Civil Procedure, § 733.
    
      Held, that the order setting aside the plaintiff’s order entertaining plaintiff’s motion for a new trial, and also the order denying the same, was properly granted. The court may in any stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, correct any mistake. Code Civil Procedure, § 723. The decision of a motion is not regarded in tile light of res adjudicata, with the same strictness as in the case of judgment.
    The action was to recover moneys alleged to have been deposited by Sliney & Whalon with the defendant, a private banker, and by them assigned to the plaintiff. When the plaintiff rested, the defendant moved for a non-suit which was granted, on the ground, as the case states, that the plaintiff failed to show a title to the moneys deposited. Thereupon the plaintiff moved for a new trial upon the minutes which was entertained by the trial judge and denied. From that order the plaintiff appealed to the general term, which appeal is yet pending. Subsequently the plaintiff moved, at a special term held by the trial judge, for an order vacating the previous orders of the court entertaining the plaintiff’s motion for a new trial, and also the order denying the same. The special term made an order vacating and setting aside both of the said orders, and from that order the defendant appeals.
    
      Rufus Scott, for the app’lt; AinsKe & Davie, for the resp’t.
   Barker, J.

The practice adopted at the circuit is without precedent, and was wholly unauthorized. By section 999 of the Code of Civil Procedure the trial judge may, in his discretion, entertain a motion, upon his minutes, at the same time at which the trial was had, to set aside the verdict and grant a new trial upon exceptions; or because the verdict is for excessive or insufficient damages; or otherwise contrary to the evidence, or contrary to law. Here there was a trial but no verdict, and the trial judge at the circuit had. no jurisdiction, and the order denying a now trial was erroneous and invalid. Emmerich v. Hefferan, 33 Hun, 54; Hill v. Hotchkin, 23 id., 414.

The only question now presented for our consideration is whether the special term had jurisdiction to vacate the order made at the circuit denying the plaintiff’s application for a new trial. Upon this question we entertain no doubt. The practice at the circuit was adopted through the inadvertance and mistake of the trial judge. By a proper motion, with notice to the adverse party, the court possessed the power, as it was its duty, to correct the mistake resulting from a misapprehension as to the correct practice in moving for a new trial upon an exception taken to the ruling at the circuit granting a non-suit. The court may, in any stage of the action, before or after judgment, in furtherance- of justice, and on such terms as it deems just, correct any mistake, occurring in the mode of procedure. Section 723 of the Code of Civil Procedure. The plaintiff in procuring the order appealed from sought to correct its own mistake, and if relief had not been granted by vacating the previous orders it might have been greatly embarrassed in procuring a hearing upon its exceptions taken to the order granting a non-suit. Upon the appeal taken from the order denying a new trial no hearing upon the merits could have been had in this court for the reason that the order appealed from was invalid, and the judge making the same had no power at the circuit to correct the error in granting a non-suit if one was made. The defendant has not. been prejudiced by the order from which he appeals for the reason that a motion for a non-suit yet stands unreversed. The plaintiff was not barred from making the motion because it had taken an appeal from the order denying a new trial.

Parties may be relieved from their own errors and mistakes if injustice would be done by refusing relief. The fact that an appeal was pending is not a bar to an application to renew a motion. Belmont v. The Erie Railway Co., 52 Barb., 637; see note 88 to Standing Rule No. 37.

The decision of a motion is not regarded in the light of res adjudicaba with the same strictness as in judgments, as therefore an interlocutory order may be vacated and set aside upon the motion of an aggrieved party, if made in pursuance of the rules and practice of the court. Smith v. Spalding, 3 Rob., 615; White v. Monroe, 33 Barb., 654; Belmount v. Erie Ry. Co., 53 id., 637; Simson v. Hart, 14 Johns.. 62.

A motion at the circuit for a new trial, when it may be entertained, after a verdict rendered, is summary in its character, and the decision of the court thereon is not to be regarded with the same consideration as a decision made , upon a former motion and after a deliberate argument.. The order of the special term correcting the errors in practice adopted at the circuit was wisely granted and the order should be affirmed.

The question presented is unlike those which are often presented and considered where a defeated party seeks to renew a motion upon the same or a new state of facts, in which cases the court, to prevent vexatious and repeated applications on the same point, have adopted rules of procedure which are intended to preclude the discussion of the same question on the same state of facts without first procuring the .permission of the court to reargue the motion. The rules of practice in that class of cases are stated in the following cases, which are cited without comment: Belmont v. Erie Ry. Co., 52 Barb., 637; White v. Monroe, 33 id., 654; Smith v. Spalding, 3 Rob., 615; Snyder v. White, 6 How. Pr., 321; Erie Ry. Co. v. Ramsey, 57 Barb., 449.

The order appealed from was granted without costs to either party and no disposition was made of the appeal taken by the plaintiff from the order made at the circuit denying a new trial. The only ground of complaint which the defendant can make is, that the appeal is not disposed of, on vacating the order and on such terms as to costs that would be just and fair to him. If he desired that the apjieal should have been disposed of at that time he should have brought the question before the court for its decision.

We express no opinion upon the question whether the plaintiff can move upon the case as settled for a new trial without first formally discontinuing his appeal. Mor whether the defendant should be allowed any costs on such appeal.

In view of the somewhat peculiar features of the case as presented on this appeal, we affirm the order, without costs to either party.

Order affirmed.

All concur.  