Adam Emmerich, Respondent, v. Peter Hefferan et al., Appellants

Adam Emmerich, Respondent, v. Peter Hefferan et al., Appellants. (Submitted June 19, 1884; decided October 7, 1884.) Upon the trial of this action at circuit the court dismissed the complaint on the ground that the facts stated therein were not sufficient to constitute a cause of action and the plaintiff excepted to that decision. On a motion subsequently made by the plaintiff at the same term and before the same judge who had granted the dismissal, the judge, being satisfied that the order of dismissal had been inadvertently made, ordered that it be vacated and set aside, and that a new trial be granted, and the case restored to the calendar. On the hearing of that motion the counsel for the defendant consented to the making thereof, and waived all questions as to regularity and the right of the plaintiff to make the same. This consent and waiver are recited in the order. . An appeal from the last-mentioned order, taken by the defendant to the G-eneral Term was there dismissed, and the present appeal is from the order of dismissal. The court says: “ Under the general power of the court to correct or set aside its own orders and judgment, we think the order of the judge at circuit was valid. It was not made in conformity with the ordinary practice, but was not void for want of jurisdiction. The consent of the defendant to the making of the motion, and his express waiver, are a full answer to any objection of irregularity. The correctness of the order on the merits is quite plain, and is not even questioned in the points submitted on this appeal. The only point here urged is that the G-eneral Term erred in dismissing the appeal, and that we should remand the case to the General Term to pass upon the merits. "We think that in the present ease this would be an idle ceremony. It would have been technically more correct if the General Term had affirmed the order of the Special Term, instead of dismissing the appeal. But as appears from the opinion at General Term the only point there discussed was the jurisdiction of the judge at circuit to make the order. The court held that it was not a question of jurisdiction but of regularity merely, and that the defendant was precluded hy his consent from raising that question, and on that ground the appeal was dismissed.” A. R. Dyett for appellants. Wm. G. McCrea for respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for affirmance. ,A11 concur. Order affirmed.