Allen v. Trigge

218 A.D. 743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1926
• Status: Published

Opinion

Order of April 15, 1926, granting motion for reargument and directing a decision and judgment in accordance with the opinion filed September 8, 1925, reversed upon the law, with ten dollars costs and disbursements to appellants, and motion denied. Order granting reargument and, on such reargument, vacating findings of fact and judgment of July 27, 1925, modified so as to grant a new trial of this action. We think the learned justice had power to set aside the judgment and grant a new trial pursuant to the Civil Practice Act, sections 522-528; but without a new trial he had no power to vacate his findings of fact and conclusions of law and the judgment entered thereon, and to grant a new judgment directly contrary to the provisions of the judgment originally entered. (Clancy v. N. Y., N. H. & H. R. R. Co., 226 N. Y. 213, 217; Heath v. N. Y. Bldg. Loan Banking Co., 84 Hun, 302; affd., 146 N. Y. 260; Bay v. New York Bay Extension R. R. Co., 34 App. Div. 3; Hanbury v. Metropolitan Securities Co., 215 id. 225.) Kelly, P. J., Jaycox, Manning, Young and Lazansky, JJ., concur.