Lanaris v. Mutual Benefit Life Insurance

9 A.D.2d 1015, 194 N.Y.S.2d 718, 1959 N.Y. App. Div. LEXIS 5424

Opinion

—• Order modified in accordance with the memorandum and, as so modified, affirmed, without costs of this appeal to either party. Memorandum: The motion to vacate the order of March 30, 1959, was properly denied but, under the prayer for “ other and further relief ”, the motion should have been treated as one to resettle the recitals in the order so as to incorporate a list of all the papers upon which the order had been based (Rules Civ. Prac., rule 234; Sylvander v. Taber, 8 A D 2d 1001; Young v. Taber, 9 A D 2d 631; Farmers’ Nat. Bank v. Underwood, 12 App. Div. 269; 1 Carmody-Wait, New York Practice, p. 697). The order appealed from should be modified by adding a paragraph directing that the recital's in the- order of March 30, 1959, be resettled by incorporating therein a list of all the papers which were used upon the argument of the motion which led to that order, as given in the affidavits of the attorneys. All concur. (Appeal from an order of Erie Special Term denying a motion to set aside order of interpleader.) Present — McCurn, ¡P. J., Kimball, Williams, Bastow and Halpern, JJ.