
    NEW YORK SUPERIOR COURT.
    James S. Smith, appellant agt. George R. Spalding and others, respondents.
    The decision of a motion is not to be considered as res judicata. But motions may be reheard on leave, on special occasions, but not on the same facts. A grant of leave to renew a motion rests in the discretion of the court; although on the rehearing it may be bound to take the same view of the facts as the 'judge who first heard it. Such an order is not appealable♦
    A mere oral decision of a court is of no avail without an order making it a record. It is a dangerous practice in any case, to rely on affidavits of the parties as to what a court has decided, even counsel being sometimes mistaken.
    A motion to vacate an order of arrest, does not embrace a motion to reduce the bail, although it includes an application for further,or other relief. The questions involved in the two motions are entirely distinct and dependent on different facts.
    Where on the rehearing of a motion new facts are produced, which are amply sufficient to make a hew case, the discretion of the court is properly exercised in hearing it. And it would seem to be pretty strong evidence of the importance of such facts, where the opposite party deems it necegggry to deny them in an affidavit of four pages of printed plotter,
    
      
      General Term,
    
      May, 1864.
    
      Before Robertson, Ch. J., Barbour and McCunn, Justices.
    
    After the order of arrest was obtained in this case, an order was obtained by the defendants, calling upon the plaintiff to show cause why such order should not be set aside, or for such further or other order as to the court will be meet and proper.” On the return of that order, the parties appeared and were heard. The order made on such hearing, after.reciting an order to show cause why the order of arrest in this action should not be set aside, directs' that such order be vacated as to two of the defendants, but denies “ the motion, so far as relates to the defendant Spalding.” It says nothing of any order or motion to reduce the bail. Subsequently, on the same and other papers, an order was made to show cause why the defendant Spalding should not have leave to renew his motion to discharge him from the order of arrest, or why the amount-of bail required of him should not be mitigated, or why such other order or relief as might be proper, should not be granted. On showing such cause, an order was made granting such leave, and modifying the order of arrest so as to reduce the amount in which such defendant was held to ■ bail to the sum of five hundred dollars.
    Peter Y. Cutler, for the plaintiff, appellant.
    
    Thomas H. Rodman, for the defendant, respondent.
    
   By the court, Robertson, Ch. J.

It is now claimed that no fact appeared upon the face of the papers upon which such last motion was made, different from those on which the first motion to vacate the order of arrest was denied, or that if there wére any, no excuse is given for not furnishing them on the first motion. This, of course, raises the question of the propriety of the grant of leave to renew the prior motion, or perhaps, rather, to vacate the previous order made on snob motion. It is undoubtedly true as a general rule, that summary applications by motion cannot be made over again on the same facts, any more than a case can be tried repeatedly. (Fenton agt. Lumbermen's Bank, Clarke, [V. C.] 360: Mills agt. Thursby, 11 How. Pr. 114.) New matter, however, which has come to the knowledge of the party, or happened since the making of the first order, provided it be not mere cumulative or additional evidence of the same kind (Ray agt. Constant, 3 Edw. 478), is enough. (Willet agt. Fayerweather, 1 Barb. 72; Cazneau agt. Bryant, 6 Duer, 668.) Slight variations in the form of the motion or the character of the relief asked for, seem to be sufficient (Bonnell agt. Henry, 13 How. Pr. 142; Frost agt. Flint, 2 How. Pr. 125) to allow a substantial renewal. In Snyder agt. White (6 How. 321), it is said that the decision of a motion is never regarded as “ res judicata but that as a matter of orderly practice, leave must first be obtained to renew it. And in White agt. Monroe (33 Barb. 650; S. C. 12 Abb. 357), it was held that even on the same papers a motion might be reheard, but only on special occasions, such as the prevention of a failure of justice—for instance, when the order is unappealable. In the court of last resort, after a decision is made even upon the merits, a reargument may be had so long as they have not parted with the control of the case (Hoyt agt. Thompson’s Ex’rs, 19 N. Y. 207; Rule 28, Court of Appeals) and a rehearing is granted in inferior courts where the circumstances call for it (Bank of Geneva agt. Reynolds, 20 How. 18). But in cases of renewal of motions, the decision of the judge on the previous motion, on controverted questions of fact, ought to be respected. (Skinner agt. Oetlinger, 14 Abb. 190; Union Bank agt. Mott, 6 Abb. 316.) Leave to renew seems to have such effect upon the original order as to prevent the hearing of an appeal therefrom while the order giving leave remains in force (Peel agt. Elliott, 16 How. 483). If, therefore, the decision of a motion is not to be considered as a res judicata, as held in Snyder agt. White (ubi supra), and there are special occasions in which they may be reheard on leave, as held in White, agt. Monroe (ubi supra), a grant of leave to renew would seem to rest entirely in the discretion of the court, although on the rehearing it may be bound to take the same view of the facts as the judge who first heard the motion. If so, it would seem not to be an appealable order.

But in fact the last order does not dispose of the motion, to renew which, it recites that leave had been granted; it merely reduces the amount of bail; while the previous order does no.t expressly dispose of any motion to that effect, but merely denies the motion to set aside the order of arrest. It is true, the affidavit of the plaintiff states that the motion to discharge the order of arrest was denied after argument, as appeared by a copy of the order made therein, annexed to such affidavit, and that the counsel for the defendant Spalding, then moved the court to reduce the bail, which motion was also denied.” Construing this strictly, it would appear that the latter motion was not denied until after the order was made denying the former. But it does not appear how it was denied; no order is before us denying It, which is the only mode of judicially determining such a motion. A mere oral decision, if it ever took place, is of no avail without an order making it a record. The plaintiff never seems to have sought to make it a record by amending the original order, or procuring a new order to be entered. It is very dangerous in any case to rely on affidavits of parties as to what a court has decided, even counsel being sometimes mistaken. In this case the motion appears to have been heard on the llth of last February, and the order was made five days afterwards. It is not probable that a motion to reduce the bail was made, or argument had thereon after such order" was made, or that the plaintiff was present when the decision of the court was made. We are not, therefore, at liberty to assume that, the motion to reduce the bail was actually made and decided, even if we could go behind the record. The maxim of the civil law fully applies to such a case : “ Definitiva sententia qua condemnationem vel absolutionem non. continet pro justa non habetur” Nor can I find from the papers before us that such objection was taken on the hearing of this motion to reduce the bail; for aught that appears it may have not been presented, and, therefore, waived as an estoppel, which are not favorites of the law. But it may be said that the motion to reduce the bail is embraced in a motion to discharge the order of arrest, and that the original order to show cause includes an application for further or other relief. But the questions involved in the two motions are entirely distinct, and dependent on different facts ; that on the motion to discharge being whether the party arrested has been guilty of conduct subjecting him to arrest at all, and that on the reduction of bail being as to the amount of injury sustained by the plaintiff, and the amount of bail necessary to. secure the defendant’s appearance to respond to the judgment. (Blake agt. Schwackhamer, 5 How. 251; 3 Code R. 284.) They are also spoken of in the Code as separate motions (§ 204). It would not follow from a mere notice of motion for further relief, beyond discharging the order, that it was made and denied in reference to all relief which could be granted. It appears to me to be very clear that the order reducing the bail at least was not rendered irregular or erroneous by any previous judicial disposition of a similar motion of record.

But even if it were requisite that the order denying the motion to vacate the order of arrest should be vacated, and liberty given to renew it upon new facts, before a motion could be heard to reduce the bail, there were additional facts in such affidavits beyond what was before the court on the previous occasion. In the first place, the defendant denies specifically the various representations wherewith he was charged in the plaintiff’s affidavit on which, the order of arrest was obtained; also an explanation of the original cause of difficulty between the parties; a denial of any conspiracy between the defendant Spalding, and his co-defendants; the resumption of the possession of some, at least, of the goods in ¿ontroversy, by the plaintiff since the defendant’s arrest; the fact that three-quarters of the goods belonging to the firm did not consist of goods bought of the plaintiff, and were acquired since ; a denial of the defendant’s insolvency ; the conversion of the goods bought of the plaintiff into money, and the excess of the value of the firm’s assets beyond the value of the property sold by the plaintiff; the sale of goods of the firm by the plaintiff and his son since this action was begun to persons of doubtful credit; the incompetency of the plaintiff’s son to manage the business ; the action brought by his wife, the plaintiff’s daughter-in-law, for a dissolution of the partnership; a denial that the defendant drew from the assets of the firm the sum charged in the plaintiff’s affidavit. These were amply sufficient to make a new case, and some of them were facts which occurred after the first motion was made, and the discretion of the court would not have been improperly exercised in rehearing either motion on such facts. The novelty of the facts is apparent ^from the plaintiff’s deeming it necessary to deny them in an affidavit of four pages of printed matter.

Lastly, in regard to the merits ; the plaintiff sold a stock of goods to the defendant Spalding and his own son’s wife, on representations by the former as to his property, which are claimed to be false. Such sale was conditional upon the payment by the vendees of a bond executed by them according to its terms. Such bond was conditioned to pay a certain sum in ten years, with interest quarter-yearly. The goods were sold to become part of a partnership stock, to be sold and disposed of by the vendees in a regular course of business. The defendant paid two-quarters interest, and executed a mortgage on his undivided half of the goods to his co-defendant Usher, who took possession thereof. Other goods ivere added to the stock. According to the defendant’s affidavit, the plaintiff retook possession of all the goods, including what had never belonged to him. The only denial of this is the plaintiff’s affidavit that the goods secured by him were worth only a blank sum, and that only a part of the goods so removed were recovered by him. It certainly was an extraordinary sale of goods for the purpose of carrying on business by the vendees, which required them to be kept ten years, or until the purchase money, with ten years interest, had been paid. The plaintiff also had another action pending for the same cause of action, if what is claimed to be the cause of action in this can be discovered without any complaint. If such other action be to rescind the contract and reclaim the goods, and this is for mere damages in having temporarily deprived the plaintiff of the possession of his goods, without any data to estimate them, he having got possession of the goods, it is impossible for this court to determine that five hundred dollars is not a reasonable sum for which to exact bail to secure the defendant’s being present to respond to any judgment.

Upon every ground the order appealed from should be affirmed, with costs.  