Bernstein v. Swidunovich

44 Misc. 2d 728, 254 N.Y.S.2d 863, 1964 N.Y. Misc. LEXIS 1196

Opinion

Samuel C. Coleman, J.

The defendant questions the timeliness and the manner of making of the plaintiff’s motion for a modification of my decision (CPLR 4404). The opinion, dated October 30, 1964 was filed November 4, 1964; and the period for the making of such a motion is 15 days from filing. The motion then was timely. CPLR 4405 speaks of a period ‘ ‘ within fifteen days after decision”, but that can only mean after the decision has become patent to all,— that is to say, by filing. As to the manner of making the motion, the same section requires it to be made ‘' before the judge who presided at the trial ”. That was done here and correctly ¡so. There is no need to move by order to show cause or by motion returnable at Special Term, Part I. A motion so made would in any case be referred to the Judge before whom the case had been tried (cf. 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4404.03, 4405.01; McKinney’s, CPLR 4405, Commentary).

On the merits, I shall adhere to my decision. A Judge does the best he can on conflicting and sometimes inconclusive testimony as to what was done, not done, required to be done,— value, in a “ mechanic’s lien ” case. The motion is denied.