Britton v. Phillips

New York Supreme Court

Britton v. Phillips

16 Abb. Pr. 33

DecidedMarch 15, 1861

StatusPublished

This text of 16 Abb. Pr. 33 (Britton v. Phillips) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Britton v. Phillips, 16 Abb. Pr. 33 (N.Y. Super. Ct. 1861).

Pincite

Opinion

Ingraham, J.

The portion of the judgment which directed a restitution was a part of the judgment, and was authorized to be made a part of the judgment by section 369 of the Code, which provides that “if the order shall be made before judgment is entered, the amount may be included in the judgment.” As such it is to be appealed from as any other judgment for the payment of money, and the amount can be collected by an execution (2 E. D. Smith, 41), if not stayed on appeal. An undertaking given for enough to cover the amount awarded by way of restitution and costs, would stay proceedings as to the whole judgment without an order.

It would be different if the restitution had been ordered on a motion after the judgment; then the undertaking, on appeal, would not apply, and a stay of proceedings would be necessary.

I think the undertaking is valid, and the proceedings stayed.

Motion denied without costs.

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Ingraham, J.

The portion of the judgment which directed a restitution was a part of the judgment, and was authorized to be made a part of the judgment by section 369 of the Code, which provides that “if the order shall be made before judgment is entered, the amount may be included in the judgment.” As such it is to be appealed from as any other judgment for the payment of money, and the amount can be collected by an execution (2 E. D. Smith, 41), if not stayed on appeal. An undertaking given for enough to cover the amount awarded by way of restitution and costs, would stay proceedings as to the whole judgment without an order.

It would be different if the restitution had been ordered on a motion after the judgment; then the undertaking, on appeal, would not apply, and a stay of proceedings would be necessary.

I think the undertaking is valid, and the proceedings stayed.

Motion denied without costs.

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Bluebook (online)

16 Abb. Pr. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britton-v-phillips-nysupct-1861.