
    Edmund S. Whitman et al., Appellants, v. Edwin L. Johnson, Respondent.
    (New York Common Pleas
    General Term,
    January, 1895.)
    It is not -necessary to exhibit the judge’s signature on serving an order modifying a stay of proceedings.
    A failure of the judge who granted a stay to re-sign his order after a-modification thereof by another judge so as to permit a motion to be be made, even if such, re-signing be necessary, is cured by a subsequent consent that the motion be heard by the judge who granted the modification.
    The court may hear a motion although the moving party is in technical contempt of court, as the court has the right to forgive or overlook such contempt if neither party is injured thereby.
    Two appeals, one from an order denying plaintiffs’ motion to set aside the service of defendant’s notice of entry of judgment, and the other from an order which resettled an order dated April 9, 1894, but entered June 1, 1894, granting plaintiffs a stay.
    
      Osgood Smith, for appellants.
    
      Ben. L. Fairchild, for respondent.
   Bookstaver, J.

As many of the facts are common to both appeals, they may conveniently be considered together. Hpon the trial of the action, April 9, 1894, a verdict was rendered for the defendant. Plaintiffs moved for a stay and contended upon this appeal that the learned judge granted them “ sixty days in which to make a case on appeal, and that all proceedings on the part of defendant herein, after the entry of judgment, be and the same are hereby stayed meanwhile.” ' Defendant entered the judgment and served a notice of the entry - thereof upon plaintiffs’ attorneys on the 12th day of April, 1894. On May twenty-ninth'foil owing plaintiffs served a notice of appeal, which was returned by the defendant on the ground it was too late. On June first plaintiffs entered an order signed by Judge Pryor, who tried the case, dated April ninth, granting a stay in the terms above set forth, and re-served their notice of appeal, which was again returned on the ground before stated. On the next day, June second, they obtained from Judge Bischoff an order requiring defendant to show cause why service of the notice of entry of judgment should not be set aside, and meanwhile staying proceedings. On June fourth defendant obtained from Judge Pryor an order requiring plaintiffs to show cause why the order entered June first should not be resettled.

This order, immediately upon its receipt by plaintiffs, was returned with a notice upon it ^stating that ij was returned because it was in violation of the stay of proceedings granted by the order of June second, which was served upon defendant’s attorneys on June fourth. Thereafter, and on the same day, defendant’s attorneys served upon- the plaintiffs’ attorneys another copy of their order to show cause, with a notice that they had procured from Judge Bischoff a modification of the stay granted by the order of June second, as follows :

“ Modified to the extent of allowing motion for resettlement by Judge Pryor of his order upon which this order is based,, June 4th, ’94. H. B., Jr., J. O. O. P.” This order was again returned to defendant’s attorneys with the notice indorsed that it was in violation of the stay directed by the order of June second; that it was granted prior to the modification of the order of June second, and that the modification was not '' properly served, in that the judge’s signature thereto was not exhibited at the time of such service.. The motion for a resettlement of the order of June first was, by direction of Judge Pryor, the trial judge, with the consent of counsel for both parties, referred and submitted to Judge Bischoff, and these appeals are from the orders entered upon his decision of both motions.

Whether or not the plaintiffs were entitled to a stay of all proceedings after the entry of judgment, or merely of a stay of execution allowing the service of notice of entry of judgment, was a question of fact to be determined on the evidence presented to the judge, and this could as well be'determined by the1 judge who decided it as by the judge who tried the case. Moreover, the motion was heard on consent of both parties, and, therefore, no question can be raised upon that ground.

We think the evidence in favor of the disposition made of the matter by the judge at Special Term overwhelmingly supports his decision. The affidavits of the attorneys for the parties are conflicting. The affidavit of the stenographer does not support appellants’ contention, for he swears he “ has examined the transcript of his stenographer’s minutes relating to the motion for a stay and finds he entered the motion, but did not enter 1¿ie order of the judge granted thereon.” So that what was actually granted in nowise appears from either. his minutes or affidavit. The only other evidence on the subject is the extract from the clerk’s minutes, which reads as follows: “ 60 days stay of execution after notice of entry of judgment; ” and this we think conclusive of the terms of the order made at trial term. There was nothing in the cáse which would warrant the extraordinary relief of extending the time to appeal. The clerk’s minutes, are in accordance with the almost universal practice of the court, and the order denying plaintiffs’ motion to set aside the service of notice of entry of judgment must, therefore, be affirmed, with costs.

As to the resettlement of the order of April ninth, entered June 1, 1891, it is merely made to conform to the order denying the motion to set aside the notice of entry of judgment. But it is contended that this motion was made while defendant was under a stay of all proceedings by reason of Judge Bischoff’s order, and hence was in contempt of court at the time of making it, and should not have been heard. Judge Bisohoff, however, had modified his order of June second so as to allow a motion for the resettlement of Judge Pryob’s order; and the right of a judge to vacate or modify his own order without notice is elementary, and is confirmed by section 772 of the Code of Civil Procedure.

It is further contended that the service of a cojiy of the modification of the order of Judge Bisohoff was irregular and invalid, in that Judge Pryor did not re-sign his order after the modification of his order made by Judge Bisohoff ; and also on the ground that the' .judge’s signature was not shown to the plaintiffs’ attorney when it was served. It is not necessary to exhibit the judge’s signature on serving such an order. Gross v. Clark, 1 Civ. Proc. Rep. 17, and cases cited. The re-signing of Judge Pryor’s order by that judge, even if necessary, was cured by the subsequent consent that this motion should be heard by Judge Bisohoff. But even if the defendant were in technical contempt of court, the court has at all times the right to forgive or overlook such contempt, provided that neither of the parties to the proceedings are injured thereby (People ex rel. Baldwin v. Miller, 9 Misc. Rep. 1) ; and in this case it is clear that neither party had acquired any right under the order or had acted thereon to its detriment. This order must, therefore, also be affirmed, with costs.

Daly, Ch. J., concurs.

Orders affirmed, with costs and disbursements.  