
    Samuel J. Lanahan et al., Resp’ts, v. Edwin Drew, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed February 8, 1892.)
    
    Motions and orders—Reargument.
    The right to a reargument of a motion to open a default is not lost because plaintiffs have consented to a resettlement of the original order, received the costs awarded therein and excepted to the sufficiency of the; sureties to the undertaking required to secure their recovery.
    Appeals from two orders by defendant.
    
      Thomas I). Robinson, for- resp’ts; R. W. Hawlceswarth, for app’lt
   Van Wyck, J.

These are appeals from two orders entered by

plaintiff. The plaintiff sued upon a note made by defendant to the order of plaintiff. The defendant .was in default by reason of his failure to answer in time and moved originally to open the. default and set aside the judgment entered thereon, upon affidavits showing that his default was 'due to mere mistake and excus.able neglect, and on his proposed answer by which he denied the making and delivery of the note, and alleged that if he did make •it, the same was duly paid at maturity, and that plaintiff’s cause ■of action on the note was barred by the statute of limitations. This motion was granted upon condition that defendant pay ten •dollars costs and give an undertaking to secure plaintiff’s recovery. Defendant entered an order thereunder which was subsequently resettled by consent so as to' conform to the decision, whereupon •defendant paid the ten dollars to, and served the answer and undertaking upon plaintiffs’ attorneys. The plaintiffs then moved for a rehearing and reargument of the original motion upon all .the papers used on the motion, and on affidavits setting forth new and additional facts, and in which their counsel averred that he had returned the ten dollars and the answer to defendant’s attorney, who, however, denied the same, but admitted that the ten dollars had been offered to him and left by plaintiffs’ attorney upon his office desk, but was again returned. The judge who had heard the original motion granted a rehearing and reargument to.be heard on November 9th, and the order of October 14th, which is one of the orders appealed from, was duly •entered thereon, but against which defendant fully objected. The rehearing was had as ordered and the order of November '9th, the other order appealed from was entered and so modified the original order as to preclude the defendant from pleading the statute of limitations.

The defendant’s counsel concedes that the court had the undoubted right, under the original motion, to grant defendant’s application to the favor and discretion of the court upon condition that he would not plead the statute of limitations. This right rests in the discretion of the court, and when exercised at special term, •either by imposing or refusing to impose such inhibition as a-con■dition for opening a default, will be respected and sustained at general term, and thus it sometimes happens that in such cases judges of the same court rule differently at special term, yet each are sustained at general te^m. At common law the right of the •court to rehear discretional motions was absolute, and is so now. The rule as to discretionary motions is correctly stated by Judge •Clerke, in White v. Munroe, 33 Barb., 654, when he says: “It is entirely in the discretion of a court to hear a renewal of a motion or not. They can, as they may deem it advisable, hear it on precisely the same papers.” This case is cited with absolute approval in 52 Barb., 643, by the judge there writing, who makes the most complete and masterly review of the authorities upon this subject that is found in our reports. Of course there are some orders which are -conclusive, not as to a fact which might have been litigated, but ■only as to one which actually had been litigated, and on which there had been a full hearing, but a party may, upon leave, renew .a motion upon a different state of facts, or by supplying defects in proof. These two orders appealed from were discretionary, and moreover, the application for a reargument was based on affidavits ■showing a different state of facts than was disclosed on the original motion, and also supplying defects in proof. The appellant’s

counsel contends that the right of the judge who heard the original motion to grant a reargument and rehearing to plaintiffs had been lost, because the plaintiffs had consented to a resettlement of the original order, and had accepted the benefits of the order by receiving the $10 and the answer, and by excepting to the sufficiency of the sureties to the undertaking. The successful party-to a motion may enter the order, but if he fails to do so, the adverse party may enter the same without in any way impairing his right to appeal therefrom, and so, too, if the order as originally entered by the successful party does not conform to the decision, the adverse party may move for a resettlement, which, if granted, will not deprive him of appeal, nor of his right to move for a reargument of the motion, and why should he be deprived of either of these rights simply because he submits an order to his-adversary, who, admitting his own fault in entering an improper-order, consents to the order submitted, and which, in order to have-entered without notice, the party aggrieved must consent to, and. especially when the order, as resettled in this case by consent, recites that the motion was granted against plaintiffs’ objection. All that these plaintiffs have consented to by reason of such resettled order is, that it is in conformity with the original decision by which he is aggrieved, and to which he has the right of continuing his objection by appeal if the order is appealable, and if not, then by leave to reargue even upon the original papers alone, and whether appealable or not, for leave to reargue upon new or additional papers which show a different state of facts than those litigated in the original motion. The defendant’s counsel contends with great vigor that the acceptance by plaintiffs’ counsel of the ten dollars and the answer (although returned as averred by plaintiffs’ counsel) precludes him from asking and obtaining a rehearing and reargument of the motion opening the default and directing the payment of the ten dollars, and robs-the court of its inherent power to grant such rehearing, and which power is expressly recognized by § 776 of the Code, which provides how, when an order has been granted, “ a subsequent-application in reference to the same matter, and in the same stage-of the proceedings, shall be made.” And in support of this contention he relies upon the decision in Platz v. City of Cohoes, 8 Abb. N. C., 393, which was affirmed in 7-9 N. Y., 620, and which undoubtedly lays down the correct and established practice as-to appeals to the general term, for it held that where on plaintiffs’ motion a verdict against defendant was set aside on the-ground of inadequacy and upon condition that he pay defendant seventy-five dollars, which was paid and accepted, this was a waiver of defendant’s right to appeal therefrom, even though he had offered to return to it

This case does not hold even that defendant could not be-relieved from “ his mistake, inadvertency, surprise or excusable-neglect” in submitting to the order taken against him, but. held that his practice was wrong, and that he could not seek nor find such relief at general term by appeal. Of course that-is good law, and the best practice, for he should have sought. .relief by a rehearing and reargument from “ the same judge or the court,” as provided in § 776 of the Code, which means the •court which heard the original motion, and not the general term, and if he, his counsel or the court entertained any doubt as to the right of relief under that section, why they could have turned to § 724 of the Code, that monument to mercy erected in recognition of the fallibility of man, and ample authority would have been found to relieve him from his mistake or excusable neglect. It was to this section that the defendant, the appellant in the case at bar, turned and sought ■ and found relief from his mistake and excusable neglect, and .as it served him, so let it serve his adversary.

The orders appealed from are affirmed, with ten dollars costs -of each motion.

McGrOWJsr and Fitzsimons, JJ., concur.  