
    CUSHMAN against HADFIELD.
    
      Court of Appeals;
    
    May, 1873.
    Stay of Proceedings.—Remittitur.—Fixing.—Reargument.
    Rule, 16 of this court,—which provides that either of the judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings,—does not prevent a judge from staying the filing of a remittitur without service of papers and notice of motion.
    A single judge of the court may order the filing of a remittitur to be stayed, in whosesoever hands it may be, at any time before it is actually and regularly filed in the court below.
    
    The mere coming of the remittitur to the hands of the clerk of the court below, is not an actual filing. Bo held, where, on being served with the stay, he handed the remittitur back to the attorney, without having marked it filed, and expressly refused to file it.
    
    Wm. Watson, of counsel for the appellants, moved upon affidavits, that the remittitur in this action be taken from the files of the supreme court, and that the filing thereof be declared void, on the ground that such filing was.in contempt of an order of one of the judges of this court, and for a reargument.
    In this action, which was brought by J. Holbrook Cushman and others, executors, &c.,—judgment in favor of the defendants, Amos F. Hatfield and others, was on February 11, 1873, affirmed by this court with costs, on the authority of a recent decision of the coinmisión of appeals in the case of Loeschigk against the same defendants, 51 if. .71, 660, sustaining the validity of the same transfers which were in controversy in this action. The remittitur was received by the defendant’s attorney on February 13. On or about the same day, upon an affidavit stating among other things that the appellant’s attorney was about to move the commission of appeals on March 4, for a reargument of the case of Loeschigk v. Hatfield, one of the judges of this court made an order staying the filing of the remittitur herein until March 4, and the decision of the commission of appeals, &c. This order was received by the appellant’s attorney by mail on Saturday, February 15. The appellant’s attorney makes affidavit that on that day, and before the remittitur had been filed, he served the order upon the clerk in the office of the clerk of the supreme , court, whose duty it was to file remittiturs, and that shortly after such service the managing clerk of the respondent’s attorney, presented to the deputy county clerk a bill of costs for adjustment, whereupon the appellant’s attorney exhibited to such deputy clerk and managing clerk the order of stay, and the deputy clerk thereupon refused to file the remittitur and proceed with the taxation. The managing clerk of the respondent’s attorney deposes that on the occasion referred to and before the service of the stay or its ex- . hibition to the deputy county clerk, he handed the remittitur to such deputy for filing, and that a few minutes thereafter the appellant’s attorney served the stay on such deputy; that thereupon the deputy said he would not file the remittitur, and offered it to deponent who refused to take it back, insisting that it had been filed, and that it has ever since remained in the possession of the county clerk. The managing clerk immediately returned to the office of the respondent’s attorney and reported to him what had transpired at the county clerk’s office.
    The order had not then been served on the respondent’ s attorney, and was not served until Monday, the 17th, at 9 A. m.
    Ho notice of motion was served therewith.
    On the 17th an order was entered by said managing clerk making the judgment of this court the judgment of the supreme court on the assumption that the remittitur had been filed on February 15.
    On the same day, February 17, notice of adjustment of costs for February 19 was served on respondent's attorney. He attended in pursuance of the notice and objected to the adjustment on the ground that the remittitur not being filed the supreme court had no jurisdiction ; the other side claimed that the stay was void. Thereupon the adjustment was adjourned, and an order was made by one of the justices of the supreme court staying all proceedings until March 4, pursuant to the original order. This last stay was vacated, on motion at special term, on the ground, as is alleged, that the remittitur not having been filed, the cause was yet in this court.
    It is stated in the affidavits that the remittitur has been filed and judgment entered thereon, and proceedings .thereon stayed by the supreme court till the decision of this action.
    Mr. Townsend, the attorney for the defendant, makes affidavit that he was not informed of the first stay until after he was informed by his managing clerk that the remittitur had been filed, and that it was not served upon him until afterwards, and that when it was shown to him he was" and still.is of opinion that it did not stay-proceedings, and was not intended so to do unless accompanied with affidavits and notice of motion as prescribed by Rule 16 ; and that no contempt was intended.
    Mr. Dyett, his law partner, and counsel for respondent, deposes substantially to the same effect, and that his action in the matter was based upon the belief and assumption of the truth of the fact stated in the affidavit of the managing clerk, and that there has been no filing of the remití tur to his knowledge since February 15, and he claims that it was filed the instant it was handed to the clerk, notwithstanding the clerk’s subsequent refusal to file it, and that therefore it was filed before the service of the stay.
    The motion for a reargument in the case of Loeschigk v. Hatfield, has been made in the commission of appeals, and was denied on March 11, last.
    
      Wm. Watson, for the motion.
    
      A. R. Dyett, opposed.
    
      
       As to revoking a remittitur or mandate granted by mistake or under a misrepresentation of facts, see United States v. Gomez, 23 How. U. S., 326; Exp. Crenshaw, 15 Pet., 119. The case in the text overrules Lawrence v. Bank of the Republic, 6 Robt., 497, and also overrules Judson v. Gray, 17 How. Pr. 289 (Supreme Ct.), so far as it held that the delivery of the remittitur to the attorney in itself reinstated the jurisdiction of the court below. To the same effect with the case in the text, on this point, is Burckle v. Luce, 1 N. Y., 239, and see Martin v. Wilson, Id., 240. See also Wilmerdings v. Fowler, p. 86 of this vol.
    
    
      
       As to what constitutes filing, compare Cullen v. Miller, 9 N. Y. Leg. Obs., 62; Bishop v. Cook, 13 Barb., 326; Griswold v. Sheldon, 4 N. Y., 581; Dodge v. Potter, 18 Barb., 193; Fox v. Burns, 12 Id., 677; Swift v. Hart, Id., 530; 14 Tex., 339; 13 Vin. Abr., 211.
    
   Rapallo, J.

The only question of any general importance involved in this motion, is that of the validity of an order of a single judge of this court staying the issue or filing of a remittitur. Rule 16 of this court provides that either of the judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings according to the terms of the order; and it is claimed on the part of the respondents that under this rule the order made in the present case staying the filing of the remittitur was not operative, for the reason that motion papers and notice of motion were not served therewith.

It has long been the practice in this court for a single judge to stay the remittitur or the filing thereof without reference to this rule.

Cases sometimes occur in which the power sum- . marily to grant such a stay is essential to prevent injustice.

In the absence of such a power the court might lose jurisdiction of a case, and thus render irremediable any oversight which may have happened.

Such orders have frequently been granted on the mere suggestion of counsel, and the knowledge of the case derived by the judge from the argument. They may be necessary for the very purpose of affording to the applicant an opportunity to prepare papers, and move the court for the correction of its judgment in matters of detail, or for such other relief as the case may demand. If the order thus granted could not be effectual until the motion papers were prepared and served therewith, the remittitur might in the meantime be regularly filed, and this court thus lose its jurisdiction over the case. This court therefore exercises control over its own remittitur, and recognizes the power of either of the judges to stay it, in whosesoever hands it may be before it is actually and regularly filed in the court below. If this power could not be exercised by a single judge it would be impracticable to stay the filing of a remittitur when the court is not in session.

Rule 16 is' applicable to general stays of proceedings by the parties in this court in causes pending here. After having given full consideration to' the subject the court is of opinion that the rule is not applicable to an order temporarily staying the filing of the remittitur, and that the order of any one of the judges for that purpose is valid and operative, though not accompanied by motion papers or notice of motion.

Until actually and regularly filed, the remittitur is under the control of the court, and it has power to direct as to the disposition to be made of it, even though it may have been entrusted to the attorney of the party for the purpose of being transmitted to and filed in the court below.

In Murray v. Blatchford, 2 Wend., 221, the court of errors retained jurisdiction of the cause and corrected its decree, though the remittitur had actually reached the hands of the register in chancery and was in his possession, and had been by him marked filed, the chancellor having ordered that the mark of filing be struck out and the filing suspended. Whenever there is any irregularity either in the entry of the order of this court, or in remitting the proceedings to the court below, the court does not lose jurisdiction (Legg v. Overbaugh, 4 Wend., 188; Waters v. Travis, 8 Johns., 566 ; McFarlan v. Watson, 4 How. Pr., 128).

The affidavits on this motion leave it somewhat in doubt whether there ever was any actual filing of the remittitur; but if actually filed such filing was irregular, being in violation of the stay which was was exhibited at the time the remittitur was offered to the clerk for filing. The fact that the clerk took the paper into his hands and immediately on being served with the stay refused to file it, and tendered it back to the party offering it, constituted no filing. It does .not even appear that he marked it filed. The position assumed in this respect shows an attempt to evade the stay, but is not worthy of serious consideration. The counsel for the respondent. and his managing clerk now assert that there has been no other filing. This shows that there can have been no filing since the stay expired, therefore there is no legal impediment to our entertaining the motion for a reargument.

[Remarks as to the reasons for denying the motion for reargument, and as to the charge of contempt in endeavoring to file the remittitur are here omitted; the learned judge concluding as follows:]

As they [the attorneys] swear that no contempt was intended, and that they believed that the order of stay was not operative until served with papers and notice of motion, and as the language of Rule 16 and the decision of Chief Justice Robertson in Lawrence v. Bank of the Republic, 6 Robt., 497, afford some color for that view, and no actual injury has resulted from their proceedings, we have concluded that the case does not call for any action of the court on that branch of the motion.

The motion should be denied, without costs.

All the judges concurred.

Motion denied, without costs. 
      
       In this case the court did not, as stated in the report, decide that a remittitur was not proper on the dismissal of an appeal (Langley v. Warner, 2 Code R., 97). The remittitur there was irregular because on dismissal of an appeal from an order, it remitted the record of the aecompaning appeal from a judgment; and such an irregular remittitur, though actually filed, does not, as shown hy the case in the text, deprive the appellate court of jurisdiction.
     