Facot v. Rothfeld

The order complained against was dated October 1, 1901, was made after argument by counsel for both parties, and in the face of an order of the Special Term dated August 31, 1901, which latter order denied the plaintiff’s motion with costs. This appeal is taken on the ground that the former order is res judicata and that the latter order is of no avail and should be reversed.

With this view we entirely agree. It is claimed, as ground for alleged right to apply for and obtain the latter order, that, between the time of the denial of plaintiff’s application of August thirty-first, and the date of the order appealed from, plaintiff served a reply to the alleged counterclaims of the defendant, and, therefore, it is urged that there is no merit in 'the appellant’s contention that the former order is a matter of adjudication. We cannot see that this makes any difference at all, for the right to the order is no greater because of the pleading, and the earlier order is still of record, potent and unchanged. The respondent’s remedy was an appeal from that order, an application for its modification, or its amendment;- but, certainly, the parties have no right to two orders upon the record, one denying and the other granting the self-same relief. The plaintiff should have moved the order of *860August thirty-first, if dissatisfied with its terms, and not have taken the unwarranted liberty of entering a second order while the first-one, denying a similar application upon the merits, was in force. So far as the papers disclose to us there is every reason in support of the appeal.

The order of October first should be vacated with costs and disbursements of appeal.

Delehanty and McCarthy, JJ., concur.

Order vacated, with costs.