#### The People of the State of New York, Respondent, *v.*Erminio Cimino, Appellant.

Second Department,

June 12, 1914.

Courts — County Court — power to entertain reargument of motion for new trial in criminal action — modification of original order.

A County Court has power in criminal as well as in civil actions to grant a motion for a new trial, and, having done so, may allow a reárgument of the motion and modify its original order.

An order granting a new trial is not a judgment, and hence, a modification of the order is not barred by the principle of *res adjudicaba.*

Appeal by the defendant, Erminio Oimino, from a judgment of the County Court of Kings county, rendered against him on the 3d day of February, 1914, convicting him of the crime of abduction, with notice of an intention to bring up for review an order granting a reargument of the motion to set aside the verdict, and also the order thereafter entered setting aside the verdict in so far as it convicted the defendant of the crime of *218rape in the first degree, but sustaining it in so far as it convicted him of the crime of abduction.

*Samuel Wechsler,*for the appellant.

*Harry G. Anderson, Assistant District Attorney [James C. Cropsey, District Attorney,*and *Edward A. Freshman, Assistant District Attorney,*with him on the brief], for the respondent.

Jenks, P. J.:

The defendant without demurrer came to trial in the County Court upon an indictment which contained three counts, for an attempt to commit rape in the second degree, for assault in the second degree, and for abduction, respectively. The verdict is guilty of attempt to commit rape and of abduction. The court granted the defendant’s motion for a new trial and entered an order therefor, but upon a reargument granted the motion only as to the conviction for the attempt to commit rape in the second degree, denied it as to the abduction, and entered an ordera accordingly. Judgment was thereupon entered and the defendant was sentenced for the crime of abduction.

A contention of the defendant is that the County Court was powerless in the premises to reconsider this motion. There is no question of the power of that court to entertain the motion, and to grant it for an erroneous instruction of law. (Code Grim. Proc. §§ 463, 465, subd. 5.) A reading of the two opinions of the court indicates that it thought that it had made legal error in an instruction, which affected a conviction on both of the said two counts, but on second thought it concluded that such error did not affect the trial so far as the crime of abduction was concerned.

I think that the power to hear the motion implied the power to rehear it — to have a “reargument” thereof. In the leading case of *Belmont*v. *Erie R. Co.*(52 Barb. 637, 651) the court, after a learned and thorough review of the authorities, thus expressed the principle: “To sum it all up briefly, it is well settled that whatever can be done upon motion to the court, may by the court, upon further motion, be altered, modified or wholly undone.” (See, too, *Matter of Crane,*81 Hun, 96, 99; *Riggs*v. *Pursed,*74 N. Y. 370, 379.) It is quite true *219that these decisions are in civil cases, but I think that the reason of the principle obtains in a criminal case. There was neither a judgment nor the elements of a judgment in the decision as first announced and as first formally stated, for it dealt with a motion only; therefore, the principle of *res adjudicates*could not have been invoked. *(Haskell*v. *Moran,*117 App. Div. 252; *Belmont*v. *Erie R. Co., supra; Veeder*v. *Baker,*83 N. Y. 163; *Cruikshank*v. *Cruikshank,*30 App. Div. 381.) I am not inclined to follow *Matthews*v. *State*(Tex. Crim. App., 50 S. W. Rep. 368), cited to us by the learned counsel for the appellant. That court in its opinion says that its decision is one of first impression in that State; that it is unable to find any decisions in any other State bearing upon the question, but that it believed from “ a reading of the statutes in connection with other provisions ” that it was intended that the action of the court in granting a new trial “should be final.” Some of the statutes described in that opinion have no counterparts in this State, and I find nothing in our statutes or in legal principles recognized in our State that either expressly or impliedly forbade the procedure in this case.

None of the other points raised requires our comment. I advise that the judgment and second order be affirmed.

Burr, Carr, Stapleton and Putnam, JJ., concurred.

Judgment of conviction of the County Court of Kings county, and second order, affirmed.