Skinner Manufacturing Co. v. Fagenson

Full title: THE WILLIAM SKINNER MANUFACTURING Co., Respondent, v . DAVID J. FAGENSON…

Court: Supreme Court, Appellate Term

Date published: May 1, 1902

38 Misc. 121 (N.Y. App. Term 1902)

77 N.Y.S. 101

Opinion

May, 1902.

Goldfogle, Cohn Lind (Henry M. Goldfogle, of counsel), for appellants.

A.B. Fletcher (Joseph M. Lesser, of counsel), for respondent.

TRUAX, J.

To hold that a motion to vacate an order of arrest upon the papers upon which it was granted can be made only to the justice who granted it, would, in many instances, lead to a miscarriage of justice. A justice of the Supreme Court outside of the First Judicial District may, and it often happens that he does grant an order of arrest in an action pending in this district. By section 769 of the Code of Civil Procedure, a motion in an action triable in the First Judicial District must be made in that district, but if the motion can be made only before the justice who granted the order of arrest in the first district it would often happen that the person against whom the order of arrest had been issued would be unable to have the order vacated on the papers on which it was granted. And moreover every court of record has the inherent power to vacate its own orders, judgments and proceedings in order to prevent a perversion of justice or to frustrate oppression. Levy v. Loeb, 5 Abb. N.C. 157; Deitz v. Field, 41 N.Y.S. 1087.

Section 568 of the Code of Civil Procedure, read in connection with section 769, means that an application to vacate an order of arrest founded only upon the papers upon which the order was granted when made to the court must be made upon notice, but when made to the judge who granted the order of arrest it may be made upon notice or without notice, as that judge deems proper. This procedure has obtained for years in cases of arrest, injunction (Code Civ. Pro., § 626), and attachment (id., § 682.).

An examination of the papers on which the order of arrest was granted shows that the justice who vacated the order of arrest was right in so doing.

The order of the General Term of the City Court is reversed, and the order made at the Special Term of the City Court vacating the order of arrest is affirmed, with costs.

FRIEDMAN, P.J., and GILDERSLEEVE, J., concur.

Order of General Term reversed, and order of Special Term affirmed, with costs.