Horan v. Town of Brookhaven

29 A.D.2d 563, 286 N.Y.S.2d 450, 1967 N.Y. App. Div. LEXIS 2619

Opinion

Judgment of the Supreme Court, Suffolk County, as amended by order of said court dated March 31, 1967, affirmed insofar as appealed from, without costs and without prejudice to any remedies which may remain to the parties. Where change of substance in the judgment is sought, the remedy is an appeal or motion to vacate, not a motion to amend the judgment (Herpe V. Herpe, 225 N. V. 323 ; 9 Carmody-Wait 2d, New York Practice, § 63:157). However, in the exercise of our appellate jurisdiction, we now do what the lower court should have done (Matter of James, 23 A D 2d 529; Terry & Gibson V. Bank of N. T. & Trust Co., 242 App. Div. 699) and treat defendants’ cross motion as one to vacate that part of the original judgment which decreed that respondents build the boardwalk, and, as such, grant the motion. Beldock, P." J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.