
    N. Y. MARINE COURT.
    Annie Herzig, appellant, agt. Louis Metzger, respondent.
    
      New trial— Order granting, may be reviewed by the same judge and vacated, and new trial denied— Code of Civil Procedure, section 999.
    The entry of a final order granting a motion for a new trial on the minutes does not prevent the judge upon the same papers from listening to a rehearing on application of the defeated party, and making an order vacating the former final order, and deciding the motion the other way by denying it.
    
      General Term, November, 1881.
    The plaintiffs made a motion for a new trial upon the minutes, on the grounds prescribed by section 999 of Code. Judge Gtoepp decided to grant it with a stay pending appeal.
    Final order granting the motion was entered of June fourth. On order to show cause of June seventh, procured by defendant, upon same papers, the judge entered an order, June fourteenth, that the order of June fourth be in all respects vacated and the new trial denied, with ten dollars costs.
    Appeal was taken from order of June fourteenth by plaintiffs alleging in their notice of appeal want of power in th.e judge to make it.
    Ho appeal was taken from the one of June fourth. This would have involved expense of making and serving a case, as well as printing it. On hearing this appeal the general term took the judgment-roll and stenographer’s minutes as produced from the files.
    
      Charles H. Smith, for appellants.
    “A review of a judgment at special term cannot be had at another special term. Only remedy is by appeal ” (People agt. Church, 2 Lans., 465 ; Libby agt. Rosenkrans, 55 Barb., 215).
    
      
      Jacobs Bros., for respondent,
    argued the order appealed from is one resting in the discretion of the court making it, and not reviewable (Hall agt. Emmons, 8 Abb. [N. S.], 454 ; White agt. Munro, 33 Barb., 654 ; Belmont agt. Erie R. R., 52 Barb., 642 ; Bolles agt. Duff, 56 Barb., 567). Technical questions of practice ought to be disregarded (McCoun agt. N. Y. C. R. R., 50 N. Y.,176).
   Shea, Ch. J.

— The order appealed from is one which rests in the judicial discretion of the judge who made it; and we cannot declare, after a consideration of the record, that his discretion was not very properly exercised in the case presented to him. It was clearly within his power to reconsider his previous decision on the motion for a new ferial, as announced inadvertently.

-• The order appealed from is affirmed, with costs to respondent.

Eehbbas, J., concurs.

Note.— There is no appeal to the court of common pleas from this decision allowed hy the Code.— [Ed.  