Cushing v. Vanderbilt

7 Daly 512

Opinion

Joseph F. Daly, J.

Where the judgment of reversal is not final, it is not a matter of right to have restitution of moneys collected on the judgment reversed. (Marvin v. The Brewster Iron M. Co., 56 N. Y. 671, and cases cited.) This is the rule in cases where the appellate court has power to order a new trial and does so. On appeal to the Court of Common Pleas from the District Courts of this city, there is no power to order a new trial; but the judgment of reversal, if .not a final determination of the rights of the parties, is no bar to.a new action by the respondent for the same cause. If the respondent have the right to begin a new action he would " seem to occupy the same position as a plaintiff in courts of record, who is entitled by the judgment of reversal to a new trial; and the right of the appellant to restitution must be equally within the discretion of the appellate court. The question whether the judgment of reversal is final or not is for the general term which renders it to. decide, and the appellant should apply at the time of arguing his appeal for restitution if the court decide to reverse the judgment. against him. In. case he omits to do so, but succeeds in having the judgment reversed, he should ask for a reargument . on that point if entitled to it.

Motion denied with $10 costs.