In re a Proposal or Plan of Mortgage Commission

258 A.D. 911, 16 N.Y.S.2d 404, 1939 N.Y. App. Div. LEXIS 7552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1939
• Status: Published

Opinion

Order made the 20th day of December, 1937, resettling order made the 30th day of April, 1937, and denying motion of appellant to compel trustees to comply with the provisions of order dated and entered April 30th, 1937, with respect to fixing and realizing the value of a mortgage investment, reversed on the law, with ten dollars costs and disbursements, motion for resettlement denied, and motion to compel trustees to comply with the provisions of the order of April 30th, 1937, granted, with ten dollars costs. In the order of April 30, 1937, specific provisions were embodied relating to the protection of dissenting holders of mortgage investments. Under the guise of resettlement, the order of December 20, 1937, substitutes for such detailed provisions a different set of provisions. This constituted a material change of decretal provisions of the original order and could not be accomplished by way of resettlement. (2 Carmody’s New York Practice, § 953, p. 816; Ruland v. Tuthill, 187 App. Div. 314; Simmons v. Simmons, 32 Hun, 551, 556; Matter of Home Title Ins. Co., 256 App. Div. 999.) Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.