Kupperman v. Zirinsky

124 Misc. 366, 207 N.Y.S. 736, 1925 N.Y. Misc. LEXIS 626

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 8, 1925
• Status: Published

Opinion

Per Curiam:

From the notice of appeal it would appear that this is an appeal from a judgment, but in fact it is from an order entered on the seventeenth day of June amending a former judgment for the defendant so as to make it one for plaintiff. This order was the result of a motion made by order to show cause “ why the judgment should not be vacated and set aside as against the law and a hew trial ordered.”

While the court had power to vacate the judgment and grant a new trial, to change the judgment from one in favor of the defendant to a judgment for plaintiff was unauthorized. (Miller, Inc., v. Leahy Building Co., 95 Misc. 616.)

Order modified by striking therefrom “ judgment therefore amended to read judgment for plaintiff for rent $220 counterclaim dismissed as premature and without prejudice,” and substituting therefor “ judgment vacated and a new trial ordered,” and order as so modified affirmed, without costs of appeal to either party.

All concur; present, Guy, O’Malley and Levy, JJ.