
    COURT OF APPEALS.
    Mary E. Sacia, respondent, agt. Neal W. O’Connor, appellant.
    
      Ejectment—when and wider what cvrcwnstances motion for a new tidal should he denied.
    
    Where, on a motion for a new trial in an action of ejectment, the papers show that the motion is made on behalf of a party whose interest in the premises is at least doubtful, on a case where consent has been given to the judgment, such motion being made by an attorney who is not shown to have had any authority, and where it is very uncertain upon the papers what are the actual facts, and whether a case is made out for a new trial within the statute (2 B. S., 309, as amended hy chapter485, Laws of 1862), the motion should be denied.
    
      If the taking of judgment by consent was a default, the defendant should make his motion under section 38, and satisfy the court by affidavit that the ends of justice would be promoted,--tod the rights of the parties “more satisfactorily ascertained and established.”
    January, 1880.
    This is an appeal from an order of the general term of the superior court of the city of Hew York, affirming an order, made at special term, denying what purports to be defendant’s application for a new trial of an action of ejectment under the statute.
    The plaintiff commenced this action in May, 1876, against the defendant, Heal W. O’Connor. John Townshend was her attorney in this action. O’Connor alone interposed an answer to the complaint. Charles L. Halberstadt was the attorney for O’Connor. On the 22d day of June, 1877, O’Connor consented to the entry of judgment against him in open court. The case was never, therefore, actually tried. Judgment was entered against O’Connor, in favor of the respondent, for $224.74 costs, and her attorney issued an execution on this judgment against O’Connor. Garrett J. Byrne claimed to be the landlord of the defendant, O’Connor, as the affidavit of Hr. Boe states. On this execution against O’Connor, issued on plaintiff’s own judgment, the sheriff was directed by plaintiff’s own attorney to sell the interest of Garrett J. Byrne in the plaintiff’s property. That interest, so far as the papers show, was a claim that he was the landlord. This Josiah Lockwood purchased Garrett J. Byrne’s interest in plaintiff’s property. Plaintiff’s own property was, therefore, sold out on her own judgment by her own attorney, and purchased by this mysterious Lockwood, who now seeks to question her title. On the 14th of January, 1878, plaintiff sold and conveyed the premises in question to Hary L. Sacia, who now owns it. It will, therefore, be seen that the plaintiff has no interest in the action. Beal W. O’Connor and Garrett J. Byrne, the landlord of O’Connor, has no interest in it, and that neither of them make any affidavit in the motion, and no authority is shown authorizing Hr. Boe to appear for either of them. On the 24th of May, 1879, as soon after the entry of the judgment in plaintiff’s favor, for $224.74 costs, as it was possible to perfect title, the silent but diligent and unseen Lockwood, who makes no affidavit in this proceeding, served notice of motion, founded on the affidavit of Mr. Boe alone, and served it on John Townshend. On the 24th of Hay, 1879, Hr. Townshend wrote plaintiff a letter, in which he instructs her to procure another attorney. He says : “ I wish you to distinctly understand that I am no longer your attorney. I shall not oppose the motion.” Hr. Boe signs the notice of motion as “ defendant’s attorney and attorney for Josiah Lockwood.” In that notice of motion he asks that Lockwood be made a defendant and that a new trial be had on payment by the defendant to the plaintiff, “ or her attorney of record,” of costs.
    
      A. J. Roe (AT. G. Moak of counsel), for appellant.
    I. It was claimed below at general term that the motion should have been made by the defendant’s attorney of record. It is clear, however, that after judgment a party may change his attorney without any consent or order (Weeks’ Law of Attorney, 427, 436; Thorp agt. Fowler, 5 Cow., 446 ; Trust agt. Repoor, 15 How. Pr., 570).
    II. Where the prescribed facts are shown to exist, the provisions of law leave no discretion in the court either to deny the motion, or to impose terms other than those prescribed by the statute (Rogers agt. Wing, 5 How. Pr., 50; Shaw agt. McMarin, 2 Hill, 417).
    III. In this case, all the prescribed facts were shown. It was shown: (1.) The action was ejectment. (2.) The motion was by the defendant. (3.) The motion was within three years after judgment on a verdict.
    
      Ira P. Warren, for respondent.
    I. All the interest Garrett J. Byrne, had in this property, at the time of the commencement of this action, in 1876, as appears by Boe’s affidavit, was this: At the time of the commencement of the action it was claimed that the defendant was in possession as tenant of Garrett J. Byrne. It does not appear that Byrne ever claimed to own the property, or had the slightest interest in it. Whether O’Connor made this claim or a street gamin does not appear. The affidavit says “ it was claimed,” but it don’t state by whom, or that there was any foundation for the claim. Bow, if Lockwood had any interest in it, of any right to come into this case, it was through the purchase of this vague “ claim to be landlord ” under a sale on an execution against O’Connor, on a judgment owned by plaintiff, on an execution issued by her own attorney. Did this purchase make Lockwood the “ heir and assign” of the defendant, Beal W. O’Connor? Could a “ claim to be landlord ” be sold on an execution unless some fact appears to show that the “ claim ” had some foundation ? If he “claimed to be landlord” in Hay, 1876, did such claim continue until June, 1877, when the judgment was rendered ? Is not the position of Lockwood a glittering generality? Again: O’Connor’s attorney in this case is Mr. Halberstadt. Mr. Roe has never been substituted. O’Connor makes no affidavit and, for any thing that appears, knows nothing about this application. . The statute provides that the court may, upon application of “ the party against whom the same was rendered, his heirs or assigns,” vacate the judgment, &c. Before the court will put a plaintiff to the expense of á new trial, must it not appear that the application was made by “the party,” O’Connor, either by its appearing that it is made by his attorney of record in the case, or some reason given why it was not, or on an affidavit of O’Connor. Can a strange attorney come in and make such an application when he pleases, on his own affidavit, without even swearing that he acts for “the party,” without any affidavit of the party or any thing showing authority to act for “ the party ? ” We think not and the court are right in saying, as they do, that the matter is in a “ vague and obscure state.”
    II. The fact is undisputed here that when the case was ready for trial the defendant Real W. O’Connor “ consented ” to judgment in open court. Section 36 provides that “ every judgment in the action of ejectment rendered upon the verdict of a jury, or upon the-decision of a single judge, upon the facts, the court shall vacate,” etc. W e submit that a judgment rendered, not on the verdict of a jury on the facts, but by consent of the party, in open court, does not come within the statute entitling a party absolutely to a new trial (Chautauqua County Bank agt. White, 23 N. Y., 348; Large agt. Rophe, 1 Duer, 101). The party is bound by his consent, and estopped from taking advantage of a statute to indirectly get rid of his consent. There was no “ verdict of a jury upon the facts,” it was a consent which O’Connor is bound by until he shows some reason to set it aside, which perhaps he might do under section 38.
    III. The most that could be said on the part of the defendant is, that a verdict or judgment taken by consent was a default (Bennet agt. Couchman, 48 Barb., 74). If it was a default, section 38 provides for opening the default, if the' “ court is satisfied that the ends of justice will be promoted.”
    IY. Leave to renew this motion being given, it is not appealable (Robbins agt. Ferris, 5 Hun, 286). When leave to renew is given, it is not a final order within the meaning of section 190 of the Code (King agt. Platt, 2 Abb. Ct. App. Cas., 527). Had Mr. Townshend and Mr. Boe availed themselves of this leave to renew, they could have made it clear. 1st. By what authority Mr. Boe undertakes to represent O’Connor, whose attorney he is not. 2d. What the “ claim ” of Byrne to be landlord is founded on. 3d. What Josiah Lockwood got by his purchase of Byrne’s claim to be landlord, under the plaintiff’s execution against O’Connor. 4th.- Who undertook to sell the plaintiff out on a judgment which she owed without her knowledge. 5th. How it happened that Lockwood could purchase her own property, on her own execution, issued by her own attorney, on her own judgment, and pay nothing for it. 6th. Why it is that neither O’Connor nor Byrne, nor Lockwood, the three pretended claimants, make affidavit on this motion? 7th. Whether or not, although the hand is the hand of Jacob, the voice is not the voice of Esau. 8th. How the ends of justice would be promoted by allowing Lockwood & Co. to repudiate the defendant’s consent, and thus enable them to gravitate towards this little piece of land, and finally capture it, on Lockwood’s shadowy title, or, at all events, subject the owner to an expensive litigation.
   Per Curiam.

We think that the papers upon which the application for a new trial in this action is founded, do not establish facts which authorize the granting of the motion.

The application is made on the behalf of the defendant and of one Josiah Lockwood.' The interest of Lockwood is stated to have been derived from one Byrnes, who, it is alleged, was the landlord of the premises under whom the defendant. was in possession. The right of Lockwood is expressly controverted by the opposing affidavit, and it is alleged that Lockwood has no lawful title or claim, and that he is neither heir or assignee of the defendant nor of Byrne.

It is also shown by the affidavit that when the action was ready for trial the defendant withdrew his answer, and judgment was entered by his consent in open court. It is true the judgment record shows that by the direction of the court a verdict was found for the plaintiff. But without contradicting the record, it may be assumed from the affidavit, which is not controverted, that this was done by consent.

It also appears that the application is not made by the attorney of record, but by an attorney who has never been substituted in the place of the original attorney. The motion, then, is on behalf of a party whose interest in the premises is at least doubtful, in a case where consent has been given to the judgment, and by an attorney who is not shown to have had any authority. To say the least it is very uncertain upon the papers what are the actual facts, and whether a case is made out for a new trial, within the statute, (2 R. S., 309, as amended by cheap. 485, of the Laws of 1862).

The defendant, or the party actually interested, had an opportunity to supply these defects by a renewal of the motion, as was authorized by the special term. This he has failed to do, and we think the order should be affirmed, with costs.

All concur, except Folgeb and Rapallo, JJ., absent.  