Barton Realty Corp. v. Mangan

Appellate Division of the Supreme Court of New York

Barton Realty Corp. v. Mangan

25 A.D.2d 730, 268 N.Y.S.2d 869, 1966 N.Y. App. Div. LEXIS 4470

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 1966

StatusPublished

Cited by4 cases

This text of 25 A.D.2d 730 (Barton Realty Corp. v. Mangan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barton Realty Corp. v. Mangan, 25 A.D.2d 730, 268 N.Y.S.2d 869, 1966 N.Y. App. Div. LEXIS 4470 (N.Y. Ct. App. 1966).

Pincite

Opinion

Judgment dismissing appellant’s petition in the nature of prohibition to compel a Civil Court Judge to vacate a judgment readjusting costs, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs or disbursements to either side, and petitioner-appellant’s motion for judgment is granted. Respondent 437 Fifth Company, a landlord, had partially prevailed on an earlier appeal to this court in a nonpayment summary proceeding. On that appeal, this court, in a Per Curiam [731]*731opinion, modified an Appellate Term judgment, with an award of $50 costs to the landlord, by reinstating one decretal paragraph of the original Civil Court judgment favorable to the landlord; in other respects, the Appellate Term judgment was affirmed (437 Fifth Co. v. Barton Realty Corp., 23 A D 2d 168, id. 839). Thereafter, a motion by the landlord to resettle this court’s order to provide for costs to it in all courts was denied. Although nowhere stated, this denial in fact represented a considered adjudication by this court as to an appropriate division of costs. In any event, the award of costs in the Appellate Division does not mean costs in all courts, and whether such extended costs are to be granted is a matter for the appellate court to determine (see 23 Carmody-Wait, N. Y. Prac., Costs, §§ 253, 335-336; Salerno v. New York Cent. R. R. Co., 44 Misc 2d 86). Notwithstanding denial of its resettlement motion in this court, the landlord moved in the Civil Court to resettle the final judgment so as to delete the prior award against it of costs in the Appellate Term. The Civil Court improperly granted this motion. It had no power to change the terms of a remittitur from an appellate court (Matter of Reformed P. D. Church v. Municipal Ct., 185 Misc. 1003, 1007, affd. 270 App. Div. 993, affd. 296 N. Y. 822; Kirkpatrick Home for Childless Women v. Kenyon, 209 App. Div. 179; 7 Weinstein-Korn-Miller, New York Civil Practice, par. 5524.02, p. 55-174; 23 Carmody-Wait, N. Y. Prac., Costs, § 339). Moreover, it has been held that prohibition is an appropriate remedy to correct such an abuse of power (Matter of Reformed P. D. Church v. Municipal Ct., supra).

Concur — Breitel, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Judgment dismissing appellant’s petition in the nature of prohibition to compel a Civil Court Judge to vacate a judgment readjusting costs, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs or disbursements to either side, and petitioner-appellant’s motion for judgment is granted. Respondent 437 Fifth Company, a landlord, had partially prevailed on an earlier appeal to this court in a nonpayment summary proceeding. On that appeal, this court, in a Per Curiam [731]*731opinion, modified an Appellate Term judgment, with an award of $50 costs to the landlord, by reinstating one decretal paragraph of the original Civil Court judgment favorable to the landlord; in other respects, the Appellate Term judgment was affirmed (437 Fifth Co. v. Barton Realty Corp., 23 A D 2d 168, id. 839). Thereafter, a motion by the landlord to resettle this court’s order to provide for costs to it in all courts was denied. Although nowhere stated, this denial in fact represented a considered adjudication by this court as to an appropriate division of costs. In any event, the award of costs in the Appellate Division does not mean costs in all courts, and whether such extended costs are to be granted is a matter for the appellate court to determine (see 23 Carmody-Wait, N. Y. Prac., Costs, §§ 253, 335-336; Salerno v. New York Cent. R. R. Co., 44 Misc 2d 86). Notwithstanding denial of its resettlement motion in this court, the landlord moved in the Civil Court to resettle the final judgment so as to delete the prior award against it of costs in the Appellate Term. The Civil Court improperly granted this motion. It had no power to change the terms of a remittitur from an appellate court (Matter of Reformed P. D. Church v. Municipal Ct., 185 Misc. 1003, 1007, affd. 270 App. Div. 993, affd. 296 N. Y. 822; Kirkpatrick Home for Childless Women v. Kenyon, 209 App. Div. 179; 7 Weinstein-Korn-Miller, New York Civil Practice, par. 5524.02, p. 55-174; 23 Carmody-Wait, N. Y. Prac., Costs, § 339). Moreover, it has been held that prohibition is an appropriate remedy to correct such an abuse of power (Matter of Reformed P. D. Church v. Municipal Ct., supra).

Concur — Breitel, J. P., McNally, Stevens, Eager and Steuer, JJ.

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25 A.D.2d 730, 268 N.Y.S.2d 869, 1966 N.Y. App. Div. LEXIS 4470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-realty-corp-v-mangan-nyappdiv-1966.

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