Franklin Bank-Note Co. v. MacKey

• Decision Date: 30 July 1898
• Citation: 51 N.E. 178,158 N.Y. 683
• Parties: FRANKLIN BANK-NOTE CO. v. MACKEY.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 683

51 N.E. 178

FRANKLIN BANK-NOTE CO.

v.MACKEY.

Court of Appeals of New York.

July 30, 1898.

Action by the Franklin Bank-Note Company against Charles W. Mackey. There was a verdict for defendant, and from an order of the general term (31 N. Y. Supp. 1057) granting a new trial defendant appealed to the court of appeals, where the order was affirmed. 50 N. E. 1117. On motion to vacate an order to show cause and a stay of proceedings issued by one of the judges of the court of appeals. Denied.

William J. Gibson, for the motion.

Henry L. Burnett and Max J. Kohler, opposed.

BARTLETT, J.

This is a motion made before me at chambers, in the city of New York, to vacate an order to show cause and stay of proceedings herein granted by my Brother GRAY upon the grounds-First, that, the remittitur having been filed, and order entered thereon below, this court had no jurisdiction; and that, second, the stay, being for a longer period than 20 days, is void. For the convenience of counsel residing in the city of New York, and at the request of Judge GRAY, the motion is made before me.

The order to show cause and stay were granted under the following state of facts: The case was decided by this court in favor of plaintiff April 19, 1898. The remittitur was filed with the clerk of the supreme court, city of New York, April 25th, and an order entered, making the judgment of this court the judgment of the supreme court, May 16th. On the 24th day of June, 1898,-being the last day of the June session of the court,-the counsel for defendant and appellant applied for an order requiring the plaintiff to show cause before the court on the first Monday of October, 1898, why the return of the remittitur herein should not be requested, and why a reargument of this cause should not be ordered, or if such reargument should not be deemed proper, why the remittitur should not be amended in certain respects. This order was granted by Judge GRAY with a stay of proceedings pending the hearing and determination of the application for reasons he deemed sufficient, and I am confined to the questions of jurisdiction and power. This is a motion that the court request the return of the remittitur by the court below for the purposes of the application. There is a very general misapprehension as to the practice of the court on motions for reargument or to amend the remittitur. It is often erroneously assumed that after the filing of the remittitur in the court below, and order entered thereon, this court is deprived of all jurisdiction in the cause. In Sweet v. Mowry, 138 N. Y. 650, 34 N. E. 388, a motion for reargument was granted, and a return of the remittitur requested. These acts of the court were held to be in resumption of jurisdiction. In Lawrence v. Church, 128 N. Y. 324, 28 N. E. 499, a motion to amend the remittitur was granted, and the order entered requested the return of the remittitur by the court below, and when so returned it was ordered to be amended. In Moffett v. Elmendorf, 153 N. Y. 674, 48 N. E. 1105, a motion to amend remittitur was granted, and order entered that the remittitur be recalled for that purpose. A like motion was granted in Buchanan v. Little, 155 N. Y. 635, 49 N. E. 1094. This later practice of the court is not necessarily inconsistent with the earlier cases which hold that this court has no jurisdiction to grant a reargument or an amendment of the remittitur after the remittitur is filed and acted upon in the court below. Wilmerdings v. Fowler, 15 Abb. Prac. (N. S.) 86;Jones v. Anderson, 71 N. Y. 599;Cushman v. Hadfield, 15 Abb. Prac....