Opinion
June, 1906.
Charles W. Dayton, Jr., for appellant.
Bushby Berkeley (L.M. Berkeley, of counsel), for respondent.
In an action in the City Court the plaintiff recovered judgment against the Columbia Publishing Company, the defendant. In supplementary proceedings based thereon, Eugene C. Gilroy was appointed receiver. Subsequently, in an action brought by him in the Supreme Court, he replevied certain chattels, claiming that they were the property of the Columbia Publishing Company. He made a sale thereof and turned over to the plaintiff the net proceeds, amounting to $1,000.
Upon the trial of the replevin action the complaint was dismissed. An appeal taken from the judgment entered upon such dismissal resulted in a reversal and a new trial. That action is still pending.
After the entry of the judgment against him, the receiver demanded a return of the money which he had paid to the plaintiff; that demand was refused. Thereupon he petitioned for an order directing the refund of the money. The motion was denied on the ground, as stated in the order, "that the moneys were paid by the petitioner voluntarily and without any mistake of fact."
We think this disposition was correct.
The parties are in conflict as to the circumstances and agreement under which the money was paid over. The receiver claims that the payment was made at the request of the plaintiff and upon the promise to refund it whenever the necessity should arise; the plaintiff claims that the payment was made voluntarily and unconditionally. A well-defined question of fact is, therefore, presented and, upon its solution, the rights of the parties depend. That solution is to be had only in an action.
After the entry of the order referred to the receiver applied to resettle it, and he appeals also from the order denying that application.
An appeal does not lie from such an order. It is within the discretion of a court to modify or change an order already made by it and, over the exercise of such discretion, an appellate court has no control. Matter of National Gramaphone Corporation, 82 A.D. 593.
The appeal from the order denying the motion seeking the refund of the money paid must be affirmed, and the appeal from the order denying the motion to resettle must be dismissed, with ten dollars costs to the respondent.
GILDERSLEEVE and McCALL, JJ., concur.
Appeal from order denying motion seeking refund of money paid affirmed, and appeal from order denying motion to resettle dismissed, with ten dollars costs to respondent.