Hill v. Muller , 107 N.Y.S. 1 ( 1907 )

Erlanger, J.

Judgment having been entered by plaintiffs against the -defendant Charles .Muller, without right so to do, a motion was promptly made -to obtain a vacatur thereof; which motion was granted; and thereupon his attorney presented to the justice an order vacating such judgment and directing the clerk of the court to cancel the same of record. This order was entered and filed on December 27, 190-6. On the same day the attorney for the plaintiffs, without knowledge that an order had already been signed, presented an order prepared by him, and this second order was entered and filed. On the following day the attorney for the defendant caused a copy of his order to he made; and, when this was done, he also caused a copy with notice of entry thereof to be served in the usual way on plaintiffs’ attorney. The latter then for the first time discovered that two orders had been signed, and he at once informed the justice of the condition of affairs; whereupon said justice sent for both orders and, after an examination of each, selected the one which in his view accorded with his decision and then and there, in the presence of the representatives of both sides, destroyed the other and caused the clerk of the court to' he informed of his act. Counsel for defendant claims that the "clerk present at the destruction of .the order had no authority to represent him, and he at once moved the court for an order for leave to file a copy in place of the original which had been so destroyed. From the order denying such leave defendant appeals. The affidavits are conflicting as to what occurred at the time, but there is no doubt that, when the justice destroyed the order, he believed and had good reason to believe that both sides were represented and that tacit consent was given to his act. This practice, however, was not the usual one to pursue. The correct course was to apply to the court on motion to vacate the one which had been entered by mistake. An order once signed and entered becomes a record of the court in which it is filed and until vacated forms part of the history of the case.

Order reversed, with ten dollars costs and disbursements and motion granted, with ten dollars costs.

Gildebsleeve and Leveetbitt, JJ., concur.

Order reversed, with ten dollars costs and motion granted, with ten dollars costs.