
    Charles F. Goepel, Appellant, v. Robinson Machine Company, Respondent.
    First Department,
    November 22, 1907.
    Res, adjudicata — failure of Appellate Division to order restitution of property released from attachment — section 1333, Code Civil Procedure, construed — concurrent authority of Special Term.
    When the record upon an appeal from an order vacating a warrant of attachmen does not show that the property had been returned to the defendant, the fact that the Appellate Division on reversing the order vacating the attachment struck out a provision that the property should be returned to the sheriff, does not estop the Special Term from granting a subsequent order requiring the defendant to restore the property. This, because the Appellate Division could not incorporate a provision in the order not based on facts appearing in the record.
    Section 1323 of the Code of Civil Procedure, which allows an appellate court to compel the restitution of property lost by an erroneous judgment or order, does not prevent the Special Term from entertaining such application for restitution where a right has been lost to a party to an action or special proceeding by virtue of an order subsequently reversed upon appeal. Said section 1323 is permissive merely, and was not intended to take away the jurisdiction of the Supreme Court to enforce its own orders or correct mistakes made in consequence of an erroneous order or judgment subsequently reversed.
    Houghton, J.,. dissented, -with opinion.
    Appeal by the plaintiff, Charles F. Goepel, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Flew York on the 16th day of July, 1907, as denies the plaintiff's motion to require the defendant to return to the sheriff property levied upon under a warrant of attachment but which had been returned to the' defendant upon the vacating of the warrant of attachment, or, in lieu of the return of said property to the sheriff, to pay to the sheriff the value of said property.
    
      Don R. Almy, for the appellant.
    
      Philip K. Walcott, for the respondent.
   Ingraham, J.:

This motion was denied upon the ground that the relief here sought had been refused by this court, as a clause granting this portion of the motion was stricken from the order of the Appellate Division when the order vacating the warrant of attachnient was reversed. The learned court at Special Term was mistaken as to the reason why this clause was stricken from the. proposed order of this court. Upon that appeal it did not appear by the record that the property levied on under the warrant of' attachment had been released from the levy and returned to the defendant, and as that appeal had to be decided upon the record it was quite improper to insert in the order a provision based upon a fact which did not appear upon the record, but which had to be shown by affidavit. The proper proceeding was to make a motion for what was in effect a restitution of the right lost by the plaintiff in consequence of the erroneous provision, of the order, appealed from.- ■ .The defendant had no notice of such a motion, except so far as it w'as contained in the notice of settlement of the order which contained the provisions for restitution, and as the defendant objected to the inclusion of that provision in the order, it was stricken out as not tlaén properly before the court. The motion should not,' therefore, have been denied upon the only ground upon which the learned judge at Special Term based his decision.

The: defendant, however, takes the further objection that the Special Term had no power to entertain the motion, but. it should have been made at the Appellate Division, and bases this contention upon section 1-323 of the" Code of Civil Procedure which provides that ‘when a final judgment or order is reversed or modified, upon appeal,.the appellate court, or the general term of tlie same court, as the case may be, may make or compel restitution of. property, or .of a right, lost by means of the erroneous judgment or order.; but Hot so as to affect the title of a purchaser in good faith and for value.” In Mossein v. Empire State Surety Co. (117 App. Div. 820) it was held by the second department that this provision which authorized an appellate Court to make restitution did hot affect the inherent jurisdiction of the Special Term to order restitution, but ivas simply á grant of .the like power which was inherent in the court at Special Term to the appellate court, which, reversed the order or judgment appealed from. As this prescribed a rule of practice, we think we should follow the second department and affirm the right of the Special Term to entertain an application for restitution where a right has been lost to a party'' to an action or special" proceeding by virtue of an order which subsequently upon appeal was reversed; but I fully agree with the second. department. This provision granting power to the appellate, court is general, applying to the .Court of Appeals as well as to the several branches of the-Supreme Court authorized to hear appeals. . Without this provision neither this court nor the Court of Appeals on an original application would have power to decree restitution. ' The application would have to be made at the Special Term. It seems to me that this authority, which is. permissive merely, was intended- to confer upon appellate courts the'same power that had always resided in and .been exercised by the court of the first instance. It is to me clear that it could' not have been the intention of the Legislature to take away the jurisdiction of the Supreme Court to enforce its own orders or to correct any mistake that has been made in consequence of an erroneous order or judgment where the erroneous order or judgment had been reversed by an appellate court. When the appellate court was not in session, no matter what necessity there was for judicial action, no relief could" be granted until the appellate court reconvened and the motion could there be made.

I think the Special Term, therefore, had power to entertain the application, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson, P. J., McLaughlin and Scott, JL, concurred; Houghton, J., dissented.

Houghton, J. (dissenting):

The plaintiff obtained an attachment which was set aside. On appeal to this court the order setting aside the attáchment was reversed and it was thus restored. After the vacating of the attachment the defendant removed the property levied upon out of the jurisdiction of the sheriff.

I agree that this property should be restored, but I do not think the Special Term had any power to entertain a motion for- its restoration. The motion should have been made in this court, where the reversal was had.

The original order setting aside the attachment was a final order so far as the rights under the attachment were concerned. Section 1323 of the Code of Civil Procedure provides: When a final judgment or order is reversed or modified upon appeal, the appellate court, or the general term of the same court, as the case may be, may make .or compel restitution of property or of a right lost by means of the erroneous judgment or order, but not so as to affect the title of a -purchaser in'good faith and for value.”

In Hayes v. Nourse (25 Abb. N. C. 95) the power of a Special Term to make an order for restitution on reversal was discussed, and it was held that the Special Term had no power, but that the same was vested either in the General Term of the Court, of Common Pleas, through which the judgment had passed,, or in the Court of Appeals; where the judgment was reversed.

The proper interpretation of section 1323 of the Code was discussed in Carlson v. Winterson (146 N. Y. 345), and in his opinion Haight,. J., in the expressed hope that, there might be no doubt- in the future as to the court in which-.a motion for restitution . should be made, took pains to state the proper .practice to be pursued. He says: “It follows that the motion may be .made in-the court that reverses-the judgment,, or.it maybe made, at the General Term of the court to which the case has been remitted and is pending, if that court has a General Term. If not, the motion must be made in the court that reversed the. judgment.”

Of course, what is said respecting a judgment applies to the order mentioned inthe same section, and the rule would seem to be very plain.

Mossein v. Empire State Surety Co. (117 App. Div. 820) is not to the contrary, nor an. authority, upon the.question involved. " In that case the question discussed was as to the power of the Special Term to direct .-restoration of money-which it had previously ordered paid into court. ' Of course the Special Term'had power to do that. Ho question of the powerof the Special Term to order restoration-after reversal was involved and, nothing was said on that subject.

For these reasons I think the Special Term was right in denying the -restoration asked for arid that its. order, should be affirmed, with leave to the plaintiff to move in -this court. - ..

. Order reversed, with ten' dollars costs' and disbursements, and motion granted, with ten dollars costs. ■  