Devlin v. Greenwich Sav. Bank

11 N.Y.S. 956, 1890 N.Y. Misc. LEXIS 2566

Opinion

Daly, C. J.

The order as heretofore resettled correctly states that the reversal of this-judgment was upon questions of fact, and the party prevailing upon the appeal was entitled to have the order entered in that form; and if we are Row to vacate the order as resettled, because it was entered ex parte, (which is the irregularity complained of,) plaintiff would still be entitled to the same order upon giving notice. It was not commendable for him to procure the order ex parte while an application for it upon notice was pending, but it was not irregular for the judge who made the original order to correct it whenever the necessity for doing so was brought to his attention, and the order itself ought not to be disturbed. However, should the defendant (who has taken an appeal to the court of appeals from the order as originally entered) desire to withdraw or discontinue such appeal, in view of the order as now corrected, he should be permitted to do so without costs, as a condition of allowing the order as resettled to stand. Such a condition would have been attached to the resettlement if asked for, and may now be imposed as the terms upon which the order will be permitted to remain, if the defendants so desire. Motion will be denied, if plaintiff will stipulate accordingly; otherwise, granted.