
    People ex rel. Mary R. Bush et al., Resp’ts, v. John R. Brown, App’lt.
    
      (Court of Appeals,
    
    
      Filed December 7, 1886.)
    
    Appeal—Habeas corpus—Judgment—Jurisdiction.
    The general term on reversing an order at special term dismissing a writ of habeas corpus directed a new hearing'on the writ at special term. On the r hearing the special term remanded to the possession of the relator the infant, to obtain the possession of which the proceedings were brought. A motion was mad : at special term to set aside this order, and on denial and appeal to the general term was affirmed. Upon appeal to the court of appeals: Hell, that the appeal could not be entertained. That it was within the discretion of the court below whether they should set aside the order or leave the appellant to set up the invalidity of the order whenever an attempt should be made to enforce it against him.
    Appeal from an order of the supreme court, general term, second department, affirming an order of the special term, denying appellant’s motion to set aside a former order of that court awarding an infant to the custody of relators on the ground that the court had no jurisdiction to make such order.
    
      E. H. Berm, for app’lt; John A. Deady, for resp’ts.
   Rapallo, J.

This appeal is brought upon the theory that the general term, on reversing the order at special term dismissing the writ of habeas corpus, had no jurisdiction or power to direct a new hearing on the writ at special term, and that consequently the order made at special term on the rehearing, remanding the infant, Francis 0. Brown, to the custody of the relators, was without jurisdiction and void. On that ground the appellant moved, at special term, to set aside last-mentioned order, and his motion having been denied, and the denial affirmed at general term, he now appeals to this court.

We are of opinion that the appeal cannot be entertained. Even if it should be assumed that the order which the appellant sought by the motion to set aside was made without jurisdiction and was void, the appellant would not have an absolute right to demand that it be set aside on motion. It was within the discretion of the court below whether to grant that relief, or to leave the appellant to set up the invalidity of the order whenever an attempt should be made to enforce it against him, or to obtain any benefit thereunder. No appeal, therefore, lies to this court from a refusal by the court below to set aside such an order on motion. This precise point was decided in the case of Foote v. Lathrop (41 N. Y., 358), and has been affirmed in several subsequent cases.

The appellant was constrained to base his motion, as he did, on the ground that the orders were absolutely void, because, if they were not void, but simply erroneous, his remedy was by appeal, and not by motion to set aside.

The appeal should be dismissed, with costs.

All concur.  