
    Fannie F. Archer, Appellant, v. Margaret Archer, Individually and as Administratrix with the Will Annexed, etc., of Allison M. Archer, Deceased, and Others, Respondents, Impleaded with George Archer, Individually and as Sole Surviving Executor and Trustee of the Last Will and Testament of Michael A. Archer, Deceased, Appellant. (Actions Nos. 1 & 2.)
    Second Department,
    March 10, 1916.
    Practice—judgments—discretion of judge at Special Term to vacate judgments previously rendered hy him — review hy Appellate Division of such order — costs.
    A judge at Special" Term may, in his discretion, vacate judgments of foreclosure previously rendered by him, where he discovers in a later action involving the same parties, that such judgments were contrary to law, involved a breach of trust, were unjust to the rights of the defeated party, and were rendered under a misapprehension of the true facts.
    An order vacating judgments under such circumstances is subject to review by the Appellate Division, which will neither reverse nor modify the action of the Special Term, unless convinced that the facts did not justify the exercise of discretion.
    A motion to vacate judgments under such circumstances should only be granted upon terms imposed upon the moving party.
    Appeal . by the plaintiff, Fannie F. Archer, and by the defendant George Archer, individually and as executor and trustee, from an order of the Supreme Court, made at the Rock-land Special Term and entered in the office of the clerk of the
    
      county of Rockland on the 15th day of May, 1915, vacating and setting aside judgments in two actions in foreclosure.
    
      Charles F. Brown [Fred TV. Penney with him on the brief], for the plaintiff, appellant.
    
      Leon B. Jillson, for the respondents.
   Per Curiam:

The Special Term on motion has vacated judgments of foreclosure which the Special Term (the same justice presiding) had rendered, and of which one had been affirmed by us. (147 App. Div. 45.) The Special Term recites that it granted the motion because, subsequent to those judgments, it discovered, found and adjudged, in a later action (which involved the same parties), facts which it considers were fatal to the judgments in that the judgments were unnecessary, contrary to law and ki breach of trust, and because those judgments were granted under a complete misapprehension of the “true facts,” and because it now believes that the actions were framed fraudulently to defeat the property rights of the defendant, and because those judgments were wholly unjust.

Such an order is within the inherent power of the court (Clark v. Scovill, 198 N. Y. 279; Vanderbilt v. Schreyer, 81 id. 646), which could be exercised when this order was made. (Seaman v. Clarke, 75 App. Div. 345; Hatch v. Central National Bank, 78 N. Y. 487; Ladd v. Stevenson, 112 id. 332; Donnelly v. McArdle, 14 App. Div. 217.) Such an order, although within the discretion of the Special Term, is subject to our review, for this court and the Special Term are both of the Supreme Court. We think, however, that we should not consider such an order exactly as if an original application therefor had been addressed to us. The question before us is whether that exercise of the discretion of the Supreme Court by the Special Term thereof should be approved. While our decision involves an exercise of the discretion of the Supreme Court, and our disposition of the order likewise, it is a discretion to be exercised upon review. And we should neither reverse nor modify the action of the Special Term unless we are convinced that the application did not justify its exercise of the discretion of the Supreme Court.

■ We cannot say that the order of vacation should not be sustained. Examination of the record on appeal shows that the pleadings did not present the questions now indicated by the Special Term in its order, but that the questions both litigated and presented on the appeal, principally if not entirely, were confined to the construction of a will. "If the court that tried the case was apprised, subsequent to the rendition of judgment, of facts which impressed it that judgment was contrary to law, involved a breach of trust, was unjust to the rights of the defeated party and was rendered under a misapprehension of the “ true facts,” then it cannot be said that the Special Term did not exercise its discretion (to quote the expression in Ladd v. Stevenson, 112 N. Y. 325) “for sufficient reason, in the' furtherance of justice.” (See, too, Bell v. Kelly, 17 N. J. Law, 270; Black Judg. [2d ed.] § 322; Wetmore v. Law, 34 Barb. 515, cited in Matter of New York, Lackawanna & W. R. Co., 40 Hun, 138.) The omission to plead so that these questions could have been litigated could be taken into consideration by the Special Term. (Nash v. Wetmore, 33 Barb. 159; McCredy v. Woodcock, 41 App. Div. 526.)

Our approval of the order of vacation does not import that we affirm the conclusions of the court as to the facts as recited in its order or as to the legal effect thereof.

If the judgments are vacated and the defendants permitted to litigate the questions which have impressed the Special Term and have moved it to grant this relief, there will be opportunity to present the facts and to apply the law at a trial. The plaintiff should not be deprived summarily of her right to litigate in this action her claim against the defendants, and, hence, she should not be forced as a defendant to adjudication of her claim in the later action to impress the trust. And the relief granted by this motion should be upon terms imposed upon the moving party. (Early v. Bard, 93 App. Div. 476; Born v. Schrenkeisen, 20 J. & S. 219; affd., 110 N. Y. 55.)

Therefore the order is modified by providing that the judgments be vacated with leave to the defendants to serve further answers herein if so advised, within ten days, upon payment of the costs of the actions up to date and of this motion, and provided the defendants forthwith stipulate to continue the trial subject to the direction of the Special Term. As so modified it is affirmed, without costs of this appeal.

Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred.

Order modified by providing that the judgment be vacated, with leave to the defendants to serve further answers herein if so advised within ten days upon payment of the costs of the actions up to date and of this motion, and provided the defendants forthwith stipulate to continue the trial subject to the direction of the Special Term, and as so modified the order is affirmed, without costs of this appeal.  