First Department, May, 1909. [Vol. 132. argument was had, without any suggestion of irregularity upon the ground that the proceeding was not before the Special Term appointed to dispose of litigated motions; and the order entered upon the motion is entitled: "At a Special Term of the Supreme Court * * held at Chambers thereof in the County Court House." I think the plaintiff thereby waived the question of regu larity, and that it is not available, being raised for the first time upon appeal. * The power of the Supreme Court over its judgments is inherent, not derived from or controlled by statutory or Code provisions. In Donnelly v. McArdle (14 App. Div. 217), three years and eight months after the entry of the judgment, and after two motions had been made and denied for a new trial, the plaintiff, upon a new set of papers, obtained an order to show cause from the trial judge why the case should not be reopened upon the ground of surprise and a new trial had. Mr. Justice O'BRIEN, writing the prevailing opinion upon the appeal to this court, said: "We all agree that the court had power to grant the motion, and that such power was not dependent upon or limited by the Code, but is inherent in the court. (Vanderbilt v. Schreyer, 81 N. Y. 646; Ladd v. Stevenson, 112 id. 325.) In the latter case it was said: The whole power of the court to relieve from judgments taken through "mistake, inadvertence, surprise or excusable neglect" is not limited by section 724, but in the exercise of its control over its own judgments it may open them upon the application of any one for sufficient reason in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent.' And in speaking of such power, the court in Vanderbilt v. Schreyer (supra) said; 'There are so many occasions for its exercise that it should not be curtailed. Whether the power shall be exercised in any case rests in its discretion, with the exercise of which this court will not ordinarily interfere.'' By Code provisions and rules of court, the exercise of the general powers conferred upon the Supreme Court is distributed among its justices out of court, its Trial and Special Term parts, its Appellate Term and its Appellate Division. The orderly administration of justice requires that the practice as governed by Code and rules App. Div.] First Department, May, 1909. should be followed. Irregularities in practice, however, may be waived. I do not think that the jurisdiction of the Supreme Court to entertain the motion now under consideration and grant the relief sought is affected by the question of in what room in the county court house the judge making the order, entitled at the Special Term, sat, provided that the parties were before him with opportunity to present their papers and their arguments, had a fair hearing and submitted the question for decision without raising the question. Where it appears, as it does in the case at bar, upon the statements in the affidavits upon both sides, that this was a motion the possibility of which was contemplated and suggested by the learned trial judge, and where he has made an order which recites that it was granted in furtherance of justice, we should not interfere therewith. What appellant did object to upon the hearing was that a case should have been made, and that as no case had been made, the court could not entertain the motion; but, as pointed out, a case is not required upon the motion for a new trial upon the ground of irregularity or surprise. The making of a case under such circumstances would be an idle formality. The motion is not based on rulings at the trial and the admission and exclusion of evidence. The court directed a verdict because there was no evidence to the contrary; and the reason there was no evidence was because of the unexpected absence of a material witness by whom the only evidence could have been given. The non-appearance of an expected witness furnishes good reason for the granting of a new trial on the ground of surprise. (Tilden v. Gardinier, 25 Wend. 663; Cahill v. Hilton, 31 Hun, 114; affd., 96 N. Y. 675; Smith v. Lidgerwood Mfg. Co., 60 App. Div. 467.) Under the circumstances presented by this record, the order appealed from should be affirmed, with ten dollars costs and disbursements. LAUGHLIN and Scorr, JJ., concurred; INGRAHAM and HOUGHTON, JJ., dissented. INGRAHAM, J. (dissenting): This action was an action at law and came on for trial at the Trial Term which resulted in a verdict for the plaintiff. The defendant First Department, May, 1909. [Vol. 132 then made a motion for a new trial on all the grounds stated in section 999 of the Code of Civil Procedure and upon the further ground that the defendant had been surprised by the non-appearance of the witness Kieley. This motion was denied and an order entered on the 28th day of October, 1908, whereupon judgment was entered upon the verdict. After the October Trial Term had adjourned and on November 27, 1908, upon an affidavit of the defendant's attorney setting forth the facts in relation to the absence of a witness at the trial; the presentation of a physician's certificate to that effect to the court, and the motion to adjourn the trial and its denial by the court, an order to show cause was granted by the justice who tried the case requiring the plaintiff to show cause before him at his chambers in the county court house in the city of New York "why an order should not be made and entered herein directing the rehearing of the motion made at the close of the trial of the above-entitled action for a new trial, and why there should not be a new trial of said action, and why the verdict therein directed should not be set aside upon the ground of the exceptions taken during said trial and because the verdict is against the evidence and contrary to law, and because upon the trial of this action the defendant herein was surprised by the non-appearance of a material witness, to wit, Timothy J. Kieley, and why the said defendant should not have such other and further relief as to the court may seem just." The parties appeared before the trial justice at his chambers in the court house in the city of New York and affidavits were introduced in opposition to the motion, whereupon an order was entered which recited that it was entered at a Special Term of the Supreme Court held at chambers thereof on the 11th day of December, 1908; that the action came on for trial before one of the justices of this court and a jury on the 26th day of October, 1908; that the defendant through his attorney had duly moved for an adjournment of the trial upon the ground that he was surprised by the non-appearance of a material witness then under subpoena and had presented to the trial judge a certificate of a physician that the witness was ill and unable to attend upon the trial of the action; that said motion to adjourn having been denied, the justice presiding at the trial, after hearing the allegations and proofs of the parties, directed a verdict in favor of the plaintiff and against the defendant; "and App. Div.] First Department, May, 1909. the said defendant having thereupon made a motion to set aside the said verdict upon the exceptions taken during the said trial and because the verdict was against the evidence and contrary to law, and in general upon all the grounds stated in section 999 of the Code of Civil Procedure, and further because upon said trial the said defendant was surprised by the non-appearance of the said material witness, to wit, Timothy J. Kieley, and the said Justice having denied said motion; and an order denying said motion having been made and entered herein in the office of the Clerk of the County of New York on the 28th day of October, 1908, and a judgment in favor of the said plaintiff and against the defendant having been rendered in the sum of $1,377.71 damages and the sum of $70.03 costs having been entered in the said Clerk's office on the 4th day of November, 1908; and a motion having come regularly on on the return of an order to show cause made by the said the Honorable James A. O'Gorman, the Justice who presided at the said trial and dated the 27th day of November, 1908, which order directed that the plaintiff or her attorney show cause why there should not be a reargument of the motion made at the close of the said trial to set aside the said verdict upon all the grounds stated in said motion and for a new trial of said action and for such other relief as might be proper, and the said Justice having allowed a reargument of said motion so made at the close of the said trial;" it was then ordered that the motion for a new trial be granted, the verdict of jury, the judgment entered thereon and the order denying a motion to set aside the verdict vacated and set aside, and the case restored to the general calendar for trial. The motion made before the learned justice at his chambers was thus a motion to reargue a motion which had been made and decided at the Trial Term, which Trial Term had adjourned. The order to show cause was returnable before the trial justice at his chambers, and not at the regular Special Term of the court for the hearing of litigated motions, and was heard by him, not as an original motion at Special Term, but as an application made to him to rehear a motion made to and decided by the Trial Term at which he had presided and which had adjourned. This motion which the Trial Term of the court had heard and decided and which could be reviewed on appeal, and which the learned justice First Department, May, 1909. [Vol. 132. at his chambers ordered reheard and granted, was made under section 999 of the Code of Civil Procedure. That section provides that the judge presiding at a trial by a jury may in his discretion entertain a motion made upon his minutes, at the same term, to set aside the verdict or a direction dismissing the complaint, and grant a new trial upon exceptions or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law. The right to move for a new trial, or the right of the judge presiding at the trial to entertain a motion made upon his minutes is limited to a motion made at the same term of the court at which the trial was had. The judge who presided at the trial would have no jurisdiction to entertain a motion for a new trial on his minutes after the term had adjourned, and where a motion was made and decided, and an order entered denying the motion for a new trial upon the minutes, and the Trial Term at which the case was tried had adjourned, it follows that the trial justice had no power to either entertain a new motion for a new trial on his minutes, or to reverse his decision denying the motion for a new trial, vacate the order denying it and grant the motion. The motion had been made to the trial judge upon his minutes. He had exercised his discretion in hearing the motion, had decided it, and an order had been entered denying it, and the proper method of reviewing that order was by an appeal. The practice in relation to motions for new trials is regulated by chapter 10, title 1, article 3, of the Code of Civil Procedure, of which section 999 is a part. Careful provision is there made for the various motions for new trials which may be made and the court to which such a motion must be made. Section 997 provides that when a party intends to appeal from a judgment rendered after the trial of an issue of fact, or to move for a new trial of such an issue, he must, except as otherwise prescribed by law, make a case and procure the same to be settled and signed by the judge, justice or the referee by or before whom the action was tried. Section 998 provides that it is not necessary to make a case for the purpose of moving for a new trial upon the minutes of the judge who presided at a trial by a jury, or upon an allegation of irregularity or surprise. Then follows section 999, which regulates the motion for a new trial upon the judge's minutes. Sections 1000 and |