
    ASA HALL, Plaintiff and Appellant, v. JOHN EMMONS et al., Defendants and Respondents.
    
      [Decided April 30, 1870.]
    An order allowing bail to surrender the principal in their exoneration is appealable.  A motion cannot be renewed upon the same or substantially the same facts without leave of the court for that purpose obtained. The practice upon this point stated.
    Before Monell, McCunn, and Freedman, JJ.
    Appeal from an order made at Special Term by Ohief-Jnstice Barbour.
    The action was brought upon an undertaking executed by the defendants John Emmons, Jr., and Hanford Smith, upon the arrest of the defendant James L. Paine, under an order of arrest granted in an action wherein the plaintiff herein was plaintiff and the defendant James L. Paine was defendant. Upon affidavits showing that said James L. Paine, had surrendered himself to the sheriff, without disclosing, however, the precise time of such surrender, and that he was insolvent, the defendants in this action, on the 27th day of January, 1870, procured an order requiring the plaintiff to show cause the next day why the action should not be discontinued, or why the defendants should not have time to plead to the complaint therein, or why they should not have such further or other order or relief as to the court should seem meet. On the return day plaintiff appeared by counsel, and showed that a similar motion had been made in the same action during the preceding August Special Term of the same court held by another judge; that on that occasion defendants, upon substantially the same grounds, had moved “ for a discontinuance of the action as to all the defendants, and that the defendants Smith and Emmons be absolutely released and discharged from all liability and responsibility upon or incurred by virtue of the undertaking, etc., or for such other order or relief in the premises as to the court shall seem meet and proper; ” but that the court, after a hearing of all parties, had denied the motion upon the merits and in all its parts.
    Plaintiff, therefore, contended that defendants could not renew the motion without leave first obtained for that purpose.
    The objection was overruled and an order made, under the prayer for other and further relief contained in the order to show cause, that the defendants have leave to surrender the defendant James L. Paine, within ten days, into the custody of the sheriff.
    From this order plaintiff appealed.
    
      Mr. Stephen A. Walker for appellant.
    The order is appealable.
    The leave given to surrender their principal in effect determines the action against them by affording them a complete defense, and it affects a substantial right of plaintiff (Code, § 349, subds. 3 and 4; Bank of Geneva v. Reynolds, 33 N. Y., 160, reversing upon this point, same case, in 12 Abb., 81).
    Prior to the time when the motion was made which terminated in the order now appealed from, the same application on the same state of facts had been made to the court (McCunn, J., presiding), and said application having been refused, the order entered thereupon was a complete and perfect defense as a preliminary objection to this second application.
    Compare present affidavits and order to show cause and former affidavits and order to show cause; also order.
    Upon this point Court Rule 23 is conclusive.
    “ If any application for an order be made to any judge or justice, and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application upon the same state of facts shall be made to any other judge or justice; and if upon such subsequent application any order be made it shall be revoked * * * ” (Mills v. Thursby, 11 How., 115; Cazneau v. Bryant, 4 Abb., 402).
    
      The peculiar hardship in the order below, granting leave to surrender under the prayer for other relief in the teeth of the order of McCunn, J., lies in the fact that, as appears by clerk’s certificate, the affidavits submitted to that justice on the first motion have been mislaid. The purport of those affidavits, which cannot be replaced, was that defendants were not entitled to surrender their principal under the familiar rule that having received security for their liability, they were not entitled to the special favor which the court extends to sureties.
    
      Mr. Alexander H. Reavey for respondents.
    The order appealed from is clearly a discretionary order, and is non-appealable (Sec. 191, Code of Procedure).
    The decision of a preliminary objection can never be judicially deemed a bar to a second application upon the same statement of facts, upon the merits.
    
    The notice of appeal should have particularly and specifically set out the grounds of appeal (Sec. 330, Code of Procedure; Kelsey v. Western, 2 Comstock’s Rep., 500).
    The two motions are not alike. The first motion was denied 1 upon the ground that the defendant Paine had volunta/rily surrendered himself more than twenty days after the commencement of this action, without amy order of the court.
    
    The second motion was granted, simply allowing Paine to be surrendered within ten days, and upon it appearing that he was insol/oent, which fact did not appear upon thq first motion.
    The courts have always favored the granting of relief to bail, and there is no reason why this case should be an exception.
    
      
       Reversed by Court of Appeals, 1870.
    
   By the Court:

Freedman, J.

In the case of the Bank of Geneva v. Reynolds, 33 N. Y., 160, the Court of Appeals held that an order allowing bail to surrender the principal in their exoneration is appealable, for the reason that it affects a substantial right, and in effect determines the action and prevents a judgment from which an appeal might be taken. Such being the law of this case, and it appearing from the record that the first motion was made upon substantially the same, if not stronger grounds, as the second motion, I am of the opinion that the order appealed from, which granted under the general prayer for relief a relief not specifically asked for and not forming a strictly legitimate object of the principal motion, should not be permitted to stand. The first motion was decided after a hearing of all parties upon the merits, and denied in all its parts. Leave to renew was neither reserved nor subsequently applied for. Before and since the Code it has been the practice that a special motion cannot be renewed upon the same or substantially the same facts without leave of the court for that purpose obtained (Mitchell v. Allen, 12 Wend., 290; Dollfus v. Frosch, 5 Hill, 493; Allen v. Gibbs, 12 Wend., 202; Willett v. Fayerweather, 1 Barb., 73; Bellinger v. Martindale, 8 How., 113; Cazneau v. Bryant, 4 Abb., 402; Snyder v. White, 6 How., 321; Mills v. Thursby, 11 How., 114; Smith v. Spalding, 30 How., 339).

Thus, it has been held that a party cannot, by omitting to enter the order, obtain a right to renew a motion (Peet v. Cowenhaven, 14 Abb., 56).

It is undoubtedly true that the decision of a motion is not to be condsidered as res judicata, and that there are special occasions on which a motion may be reheard, for instance when the order is unappealable; but as a matter of orderly practice it should never be done except upon leave. When that is applied for it is discretionary with the court to allow a renewal of the motion, on the same or additional papers, and its decision in this respect will not be reviewed upon appeal (White v. Munroe, 12 Abb., 357; Smith v. Spalding, 30 How., 339; Adams v. Bush (No. 2), 2 Abb. N. S., 112).

But leave will not be given to renew a motion to enable a party to insist on facts known to him, but not insisted upon at the hearing of the original motion (Pattison v. Bacon, 12 Abb., 142; 21 How., 478), and the discovery of new evidence even in support of the matter previously urged has been held to give no absolute right to a renewal of the motion (Hoffman v. Livingston, 1 Johns. Ch. R., 211).

As a general rule, however, leave will not be withheld if in the circumstances of the opposition there is anything to excite suspicion of unfairness, or a belief that the moving party was taken by surprise.

By rule 23 of the general rules, it is further provided that if any application for an order be made to any judge or justice, and such order be refused in whole or in part, or be granted conditionally or on terms, no subsequent application upon the same state of facts shall be made to any other judge or justice; and if upon such subsequent application any order be made, it shall be revoked, etc. By sec. 401 of the Code, an application for an order is styled a motion, and the same section refers to motions which can only be made upon notice as well as to such which may be made without notice. Sec. 400 provides that the term order ” shall include every direction of a court or judge made or entered in writing, and not included in a judgment. The construction, therefore, of the 23d rule above referred to, in connection with secs. 400 and 401 of the Code, would seem to lead to the conclusion that the rule applies to motions on notice as well as to ex-parte applications; and, inasmuch as such application of the rule to motions will greatly tend to maintain and perpetuate the harmony and kind feeling which should always exist between members of the same court, attorneys should not be permitted to disregard it. If the defendants in this case felt aggrieved by the first order they might have appealed or applied for a reargument. They declined to do either.

The order appealed from should therefore be reversed, with costs.  