Opinion
November 22, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
This is an appeal from an order of the Clinton County Court, entered September 29, 1959, dismissing a writ of habeas corpus and remanding the relator to the custody of respondent, the Warden of Clinton Prison. On July 23, 1958, the Clinton County Court entered a final order sustaining a writ of habeas corpus which directed that the relator be resentenced as a first offender on the commitment dated June 20, 1927, holding that his prior conviction was vitiated by a failure to comply with section 480 of the Code of Criminal Procedure. The Attorney-General filed an appeal and while it was still pending, this court decided People ex rel. De Pasquale v. McMann ( 8 A.D.2d 662) which determined that failure to comply with the section did not vitiate the prior conviction. The Attorney-General, in accordance with that decision, then moved for reargument of the Clinton County Court's 1958 order, which was granted, and which resulted in a new order dated September 22, 1958, rescinding the prior order of the court and dismissing the writ. The appeal by the Attorney-General from the first order was not prosecuted and in January, 1960, it was dismissed in this court upon motion by the relator. The relator now contends that it was an abuse of judicial discretion for the Clinton County Court to grant a rehearing and reverse a prior final order, which had been entered more than a year before the reargument, upon the ground that the court had misconstrued the applicable case law. He further argues that the 1958 order constituted res judicata. While there are cases commencing with Mount v. Mitchell ( 32 N.Y. 702) which tend to support the relator's theory that a reargument is not permissible after the entry of a final order, we conclude that they are not binding as to this case and that the court properly exercised its discretionary power to allow a reargument. There is no showing of prejudice as to the rights of the relator. The fact that an appeal to this court from the order sustaining the writ was still pending at the time of the reargument removes the facts of this case from the category of cases which invoke such procedure after a final judgment for the purpose of being able to effect an appeal. The relator further contends that the doctrine of res judicata is applicable, but we find to the contrary since each court has the inherent right to reconsider its own decision within the exercise of sound discretion. We affirm the order denying the writ on the ground that since there was an appeal pending at the time of the rehearing, there is no showing of prejudice or of an unlawful invasion of the rights of the relator. Order unanimously affirmed.