Hirschberg, J.:
The action was brought just before the expiration of twenty years to renew six deficiency judgments in foreclosure, which had been' recovered by the plaintiff’s predecessor as trustee, against the defendants’ testator. The defendants pleaded both the Statute of Limitations and actual payment. On the trial the learned trial justice' directed judgment in favor of the plaintiff, but afterwards permitted an amendment of the defendants’ answer by which the operation of the Statute of Limitations was asserted as of the date of the answer instead as of the date of the commencement of the action, and thereupon gave judgment absolute to the defendants, dismissing the complaint upon the merits. On appeal the judgment was unanimously reversed by this court, and the judgment in favor of the plaintiff reinstated. (Seaman v. Clarhe, 60 App. Div. 416.) On. appeal to the Court of Appeals the decision of this court was unanimously affirmed. {Seaman v. Olarhe, 170 N. Y. 594.) Subsequently at Special Term (the same justice presiding as at the trial),the. judgment so affirmed and a judgment entered for the costs of the appeal were set aside, and from the order setting them aside this appeal is taken. The order does not in terms grant a new trial, but is limited to the destruction of the judgments.
The deficiency judgments were obtained on the foreclosure of six mortgages which David Clarke, the defendants’ testator, had given [347]*347to Jabez H. Hazard as trustee of the estate of Eliza Eagle, deceased, and they were entered on June 8, 1880. Hazard died on January 22, 1888, and the plaintiff was appointed his successor on February 11, 1888. David Clarke died on December 13, 1896, and the defendants were appointed and qualified as his executors January 29, 1897. This action was commenced on June 6, 1900, and the trial was had on September 28, 1900. The plaintiff on the 10th day of November, 1899, had obtained from the Surrogate’s Court of the county of New York a decree requiring the defendants to pay the deficiency judgments so far as there were funds of the estate applicable, and it -was held both at the Trial Term and on appeal that such decree conclusively established that the judgments had not been paid at the time of its entry. The decree, however, was reversed pending the appeal and before thé argument here (see Matter of Clarke, 57 App. Div. 430), but this court held that notice of that fact could not be then taken, and that if it could be the fact was inconsequential upon the record as presented. (See Seaman v. Clarke, 60 App. Div. 423.) But the learned trial justice bad rejected an offer made by the defendants upon the trial to prove certain facts in order to establish a presumption of payment of the deficiency judgments, which ruling was based upon the finding that the surrogate’s decree being conclusive of non-payment at the time of its entry, the offer would only be material and proper as to facts occurring subsequently, and the order now appealed from has been granted on the theory that the support of the ruling having been subsequently taken away by the reversal of the surrogate’s decree, justice requires that the defendants should have an opportunity to litigate the fact of actual payment as established by the presumption to be drawn from the facts which were excluded on the trial.
There was no attempt made upon the trial to prove payment except by circumstantial evidence, and the circumstances embraced within the offer then made were insufficient for that purpose. They will be considered in detail later. It is sufficient now to say that they were before this court on the determination of the appeal for the purpose of determining whether on the reversal of the judgment a new trial should be granted, and the conclusion reached was that the judgment directed by the trial court should be restored. Moreover, a motion was [348]*348made "by the defendants after the decision of the appeal for a reargument in this court upon the following’ among other grounds stated in the notice of motion, viz.: (1) “ That the court overlooked or misapprehended the fact that in the event of a reversal of the judgment for defendants below, defendants are entitled to a new trial to.establish their defenses of payment, of an agreement between plaintiff’s predecessor and defendants’ decedent, that plaintiff’s predecessor, as mortgagee, take the realty, the decedent to be free from further debt, and of accord and satisfaction; ” and (2) “ That the court overlooked or misapprehended the fact that the decree of the Surrogate of New York County of November 10th, 1899, being reversed, leave should be granted here to defendants to apply at special term in view of such reversal of said Surrogate’s decree to be relieved from the judgment for plaintiff now ordered here.” After due deliberation the motion was denied. [Seaman v. Clarke, 62 App. Div. 619.) This was equivalent to an adjudication that with the fact of the reversal of the surrogate’s decree then legitimately before the court, the plaintiff was entitled to judgment upon the facts and rulings appearing upon the record. The subsequent affirmance by the Court of Appeals must be deemed an additional adjudication to the effect that upon the record the plaintiff was entitled to judgment absolute, and that the defendants were not entitled to a new trial upon the reversal of their judgment.
The power of the court at Special Term in a proper case and upon a proper showing to set aside a judgment and to order a new trial notwithstanding the judgment has been affirmed by both the intermediate and the ultimate appellate tribunals is undoubted. The power should never be exercised when its exercise is in effect the overruling of the determination of the higher courts. In this instance no new facts were presented at the Special Term, the motion being supported by only two affidavits, viz., an affidavit of merits and an affidavit of the defendants’ counsel setting forth in substance that he was familiar with all the records and documents in the case, and had also familiarized himself with the dealings between the defendants’ decedent and plaintiff’s predecessor at the time of and after the entry of the judgments; adding, to quote his language, that “ I have also familiarized myself with the different facts and circumstances which appear in the statements of Mr. Leo who [349]*349has acted as counsel for defendants, and which statements appear in the colloquy between the learned Trial Justice and said counsel in said case and exceptions as settled herein immediately after the motion to dismiss the complaint; and they are there stated as I have found them to be true from a very careful examination of the case.” No witness was referred to in the moving papers, no facts were referred to other than as already suggested and passed upon, and no statement was made tending to establish the existence of any witness to be produced upon a new trial, by whom any material fact would be proven.
The offer which was rejected upon the trial did not relate to any specific facts which would tend to prove payment of the judgments. . They are included in the following, a portion of the colloquy referred to in the defendants’ counsel’s affidavit: “ The Court. Have you any evidence ? Have you any witness you want to call and swear and prove facts ? Mr. Leo. I want to show that Mr. Clarke lived upon the premises in question as a tenant of Mr. Hazard, the trustee, immediately after this foreclosure, and for several years, and paid rent to him. The Court. No, I will not take that. Mr. Leo. I want to state what it is merely.
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Hirschberg, J.:
The action was brought just before the expiration of twenty years to renew six deficiency judgments in foreclosure, which had been' recovered by the plaintiff’s predecessor as trustee, against the defendants’ testator. The defendants pleaded both the Statute of Limitations and actual payment. On the trial the learned trial justice' directed judgment in favor of the plaintiff, but afterwards permitted an amendment of the defendants’ answer by which the operation of the Statute of Limitations was asserted as of the date of the answer instead as of the date of the commencement of the action, and thereupon gave judgment absolute to the defendants, dismissing the complaint upon the merits. On appeal the judgment was unanimously reversed by this court, and the judgment in favor of the plaintiff reinstated. (Seaman v. Clarhe, 60 App. Div. 416.) On. appeal to the Court of Appeals the decision of this court was unanimously affirmed. {Seaman v. Olarhe, 170 N. Y. 594.) Subsequently at Special Term (the same justice presiding as at the trial),the. judgment so affirmed and a judgment entered for the costs of the appeal were set aside, and from the order setting them aside this appeal is taken. The order does not in terms grant a new trial, but is limited to the destruction of the judgments.
The deficiency judgments were obtained on the foreclosure of six mortgages which David Clarke, the defendants’ testator, had given [347]*347to Jabez H. Hazard as trustee of the estate of Eliza Eagle, deceased, and they were entered on June 8, 1880. Hazard died on January 22, 1888, and the plaintiff was appointed his successor on February 11, 1888. David Clarke died on December 13, 1896, and the defendants were appointed and qualified as his executors January 29, 1897. This action was commenced on June 6, 1900, and the trial was had on September 28, 1900. The plaintiff on the 10th day of November, 1899, had obtained from the Surrogate’s Court of the county of New York a decree requiring the defendants to pay the deficiency judgments so far as there were funds of the estate applicable, and it -was held both at the Trial Term and on appeal that such decree conclusively established that the judgments had not been paid at the time of its entry. The decree, however, was reversed pending the appeal and before thé argument here (see Matter of Clarke, 57 App. Div. 430), but this court held that notice of that fact could not be then taken, and that if it could be the fact was inconsequential upon the record as presented. (See Seaman v. Clarke, 60 App. Div. 423.) But the learned trial justice bad rejected an offer made by the defendants upon the trial to prove certain facts in order to establish a presumption of payment of the deficiency judgments, which ruling was based upon the finding that the surrogate’s decree being conclusive of non-payment at the time of its entry, the offer would only be material and proper as to facts occurring subsequently, and the order now appealed from has been granted on the theory that the support of the ruling having been subsequently taken away by the reversal of the surrogate’s decree, justice requires that the defendants should have an opportunity to litigate the fact of actual payment as established by the presumption to be drawn from the facts which were excluded on the trial.
There was no attempt made upon the trial to prove payment except by circumstantial evidence, and the circumstances embraced within the offer then made were insufficient for that purpose. They will be considered in detail later. It is sufficient now to say that they were before this court on the determination of the appeal for the purpose of determining whether on the reversal of the judgment a new trial should be granted, and the conclusion reached was that the judgment directed by the trial court should be restored. Moreover, a motion was [348]*348made "by the defendants after the decision of the appeal for a reargument in this court upon the following’ among other grounds stated in the notice of motion, viz.: (1) “ That the court overlooked or misapprehended the fact that in the event of a reversal of the judgment for defendants below, defendants are entitled to a new trial to.establish their defenses of payment, of an agreement between plaintiff’s predecessor and defendants’ decedent, that plaintiff’s predecessor, as mortgagee, take the realty, the decedent to be free from further debt, and of accord and satisfaction; ” and (2) “ That the court overlooked or misapprehended the fact that the decree of the Surrogate of New York County of November 10th, 1899, being reversed, leave should be granted here to defendants to apply at special term in view of such reversal of said Surrogate’s decree to be relieved from the judgment for plaintiff now ordered here.” After due deliberation the motion was denied. [Seaman v. Clarke, 62 App. Div. 619.) This was equivalent to an adjudication that with the fact of the reversal of the surrogate’s decree then legitimately before the court, the plaintiff was entitled to judgment upon the facts and rulings appearing upon the record. The subsequent affirmance by the Court of Appeals must be deemed an additional adjudication to the effect that upon the record the plaintiff was entitled to judgment absolute, and that the defendants were not entitled to a new trial upon the reversal of their judgment.
The power of the court at Special Term in a proper case and upon a proper showing to set aside a judgment and to order a new trial notwithstanding the judgment has been affirmed by both the intermediate and the ultimate appellate tribunals is undoubted. The power should never be exercised when its exercise is in effect the overruling of the determination of the higher courts. In this instance no new facts were presented at the Special Term, the motion being supported by only two affidavits, viz., an affidavit of merits and an affidavit of the defendants’ counsel setting forth in substance that he was familiar with all the records and documents in the case, and had also familiarized himself with the dealings between the defendants’ decedent and plaintiff’s predecessor at the time of and after the entry of the judgments; adding, to quote his language, that “ I have also familiarized myself with the different facts and circumstances which appear in the statements of Mr. Leo who [349]*349has acted as counsel for defendants, and which statements appear in the colloquy between the learned Trial Justice and said counsel in said case and exceptions as settled herein immediately after the motion to dismiss the complaint; and they are there stated as I have found them to be true from a very careful examination of the case.” No witness was referred to in the moving papers, no facts were referred to other than as already suggested and passed upon, and no statement was made tending to establish the existence of any witness to be produced upon a new trial, by whom any material fact would be proven.
The offer which was rejected upon the trial did not relate to any specific facts which would tend to prove payment of the judgments. . They are included in the following, a portion of the colloquy referred to in the defendants’ counsel’s affidavit: “ The Court. Have you any evidence ? Have you any witness you want to call and swear and prove facts ? Mr. Leo. I want to show that Mr. Clarke lived upon the premises in question as a tenant of Mr. Hazard, the trustee, immediately after this foreclosure, and for several years, and paid rent to him. The Court. No, I will not take that. Mr. Leo. I want to state what it is merely. Paid rent' to him and that in one instance Mr. Hazard made a payment to the deceased judgment debtor if I may so call him; that Mr. Clarke continued in the same place to do business for several years, that then he moved to a place within two hundred and fifty feet of that point, and continued to do business there until he died; that he did a great deal of business, had considerable property; that'no execution was ever issued upon these judgments; that these people dealt with one another, and .upon the theory that this judgment was paid-. The Court. You do not propose to show that you have paid any money to this plaintiff since the surrogate issued his citation ? Mr. Leo. Not in the sense of showing that on a given day we paid any money. The Court. No; of any actual payment? Mr. Leo. No. Now I want to introduce also the judgment roll in the case of Hazard against Ball in which the accounts of the deceased Hazard were passed upon, showing what the property consisted of, and. showing how these judgments are treated as satisfied. Mr. Kohn. That was all prior to this in 1888. The Court. Then I will exclude it.”
[350]*350As to the judgment roll in the case of Hazard v. Ball it' is sufficient to say that it was not j>roduced upon this motion. As to the-general dealings of the parties upon the theory that the judgments were paid, the same criticism is applicable. Their nature and extent-was neither disclosed at the trial nor now. The fact that the mortgagor was permitted to occupy the property as a rent paying tenant in no manner tends to prove payment of the deficiency judgments, nor does tlie. fact that Mr. Clarke was possessed of (considerable property. Although he left some estate, there is nothing to show that he was possessed of it, or any part of it, during Mr, Hazard’s lifetime, while during the nine years between the plaintiff’s appointment and Mr. Clarke’s death, the plaintiff makes affidavit, which is undisputed, that nothing was paid to him and that he knew nothing of the debtor’s pecuniary circumstances. As was said by the Court of Appeals in Daby v. Ericsson (45 N. Y. 786, 791), “ the offer to show the pecuniary ability of the defendant, and that, since 1849, he had been possessed of a large property, did not tend, we think, to establish the plea of payment, and was properly over•ruled. If payment had been enforced by legal process, it could have been established by record evidence. * * * If the judgment had been paid, some evidence of the fact, it may reasonably be supposed, would have been retained by the defendant, or the judgment would have been satisfied:”
The case of Smith v. Frankfield (77 N. Y. 414) is relied on by the defendants’ counsel as authority for the proposition that where a judgment has been obtained upon the efficacy of another judgment operating as an estoppel, the subsequent reversal of the-latter judgment subverts the ground of the recovery of the former, and it is within the power and discretion of the court below to relieve the judgment debtor by vacating the judgment. In that case it was held that the motion for that purpose was in the nature of a-motion for a new trial on newly-discovered evidence. But it is well settled that such a motion must be founded on affidavits of the witnesses and of the facts to which they will testify, (Matter of Cohen, 84 Hun, 586, and cases cited.) It must also be made promptly. (Thompson v. Welde, 27 App. Div. 186.) Here the surrogate’s decree was reversed before the settlement of the case on appeal, and the defendants could have moved then instead of wait[351]*351ing until the two appeals were prosecuted to a termination. This court has said of a similar situation in Bath Gas Light Co. v. Claffy (18 App. Div. 155, 157): “ Due diligence required that if the appellant desired the benefit of the Maine decision as evidence in the case, he should move promptly after he learned that it had been handed down, and not lie still, waiting to see whether he could not succeed at the General Term or in the Court of Appeals without it before making his motion.”
The order should be reversed.
All concurred.
Order reversed, with ten dollars costs and disbursements.