#### Grace E. Lewis et al., Plaintiffs, *v.*Charles DeKay Townsend et al., Defendants.

(Supreme Court, New York Special Term,

January, 1913.)

Ejectment — motion for new trial after repeal of section 1525 of Code of Civil Procedure denied — judgment roll in action of ejectment.

By the repeal in 1911 of section 1525 of the Code of Civil Procedure which provided that, at any time within three years after the tiling of the judgment roll in an action of ejectment, the court on proper application must make an order vacating the judgment and granting a new trial, a judgment in ejectment rendered prior to such repeal is final and conclusive, and a motion to vacate it • and for a new trial, made after such repeal took effect, must he denied.

Motion for an order vacating and setting aside a judgment in an action of ejectment, and granting a new trial.

*62Robert B. Honeyman, for plaintiffs.

Mortimer S. Brown (Bradon Hamilton, of counsel), for defendant Charles Dell ay Townsend.

Calvin D. Van Líame, for defendant L. Bradford Prince.

Page, J.

This is an application by the defendants for an order vacating and setting aside a judgment in an action for ejectment and granting a new trial of the action. Judgment was entered herein after a trial of the issues on December 24, 1909. By section 1524 of the Code of Civil Procedure, as it then existed, this judgment was final and conclusive as to the title established in the action upon the parties and their privies, “ except in a case where it is otherwise expressly prescribed in this act.” Referring to section 1525, which provided that, at any time within three years after such a judgment is rendered and the judgment roll filed, the court must, upon application made as therein directed, make an order vacating the- judgment and granting a new trial. The legislature repealed sections 1525, 1527, 1528 and 1530, and amended sections 1524, 1526 and 152-9 by chapter 509 of the Laws of 1911, which became a law June 28/1911, and took effect on September 1, 1911. The defendants claim that notwithstanding this change in the law they have the right to a new trial under section 152-5; and in support thereof contend that the right to a new trial is a vested right in real estate of which they could not constitutionally be deprived, and, second, that the act of 1911 was not retroactive and, therefore, did not apply to judgments theretofore recovered within a period of three years. In support of their position the defendants cite Bay v. Gage, 39 Barb. 447, which was an appeal from an order refusing a new trial in an ejectment action. The judgment had been entered upon the report of a referee. By the statute, as it then existed, the right to a new trial only obtained when the judgment was entered “ upon a verdict.” The legislature, by amendment, struck out the words “ upon a verdict,” thus making the statutory right to *63a new trial applicable to all judgments in ejectment. A motion was thereupon ■ made to set aside the judgment entered some months before the amendment and for a new trial, but the court held the motion could not be granted; that the statute had no retroactive force and did not give a right to a new trial in a case where the rights of the parties had been definitely settled according to the law as it existed at the time the court entered the judgment. This case, however, is not an authority upon this application. The fundamental distinction between the two cases is that in Bay v. Gage there was no right to a new trial when the judgment was rendered, while in this case there was. The judgment herein determined the rights of the parties unless a new trial should be granted within a period of three years. During that time, for that purpose, the action was pending and not finally determined. The right to a new trial is a right by that means to a review of the former trial and was not a primary right, but had to do only with the remedy. It grew out of and was created by statute, and hence could be taken away by the legislature. People ex rel. Grissler v. Fowler, 55 N. Y. 675; Matter of Palmer, 40 id. 561; Laird v. Carton, 196 id. 169. Where, however, there was no right to a new trial at the time the judgment was rendered, the judgment becomes final and unalterable, and confers a vested right in the owner thereof, which is a property right of which he cannot be deprived by a subséquent act of the legislature. As the Court of Appeals said in regard to a judgment from which no further right of appeal existed at the time it was rendered and subsequently the legislature gave a further right to appeal in such actions: “A judgment is a contract which is subject to interference by the courts so long as the right to appeal therefrom exists, but when the time within which an appeal may be brought has expired, it ripens into an unchangeable contract and becomes property, which can be disposed of or affected only by the act of the owner, or through the power of eminent domain. It is, then, beyond the reach of legislation affecting the remedy, because it has become an absolute right which cannot be impaired by statute. Eemedies may be *64modified even as to pending actions, but no action can be regarded as pending when it has expanded into a judgment and the time to appeal has expired, or the only appeal allowed by law has been taken and decided. It is then no longer depending, because there is nothing further that can be done to affect the rights of the parties.” Germania Savings Bank v. Village of Suspension Bridge, 159 N. Y. 362, 368. The amendment of 1911 was not retroactive. On September 1, 1911, the right to apply for a new trial in ejectment actions ceased. Where an application had been made prior tq that time and the order granted, the trial could be had, but unless such application were made prior to that time the remedy of review by that method ceased to exist. By the amendment to section 1524, striking out the exception, the judgment in an action of ejectment rendered upon a trial of an issue of fact is conclusive as to the title established in the action upon each party against whom it is rendered and every person claiming from, through or under him. Nor is there any merit in the defendants’ contention that as section 1529 was not repealed it showed that the legislature recognized the right to vacate under section 1525 judgments which had been recovered prior to September 1, 1911; for we find that the legislature, by amendment, eliminated the words from section 1529 *“*except as prescribed in section 15'2'5 and section 1526 of this act,” thus showing clearly that final judgments in ejectment were placed in the same class with all other judgments and liable to be vacated by appeal, by motion for a new trial on newly discovered evidence, or under sections 1282 to 1287 of the Code of Civil Procedure, and, if so vacated, provision with respect to the possession of the property was made. The judgment entered herein on December 24, 1909, is final and conclusive, and this application to vacate it and for a new trial must be denied.

Motion denied.