Monachelli v. Morrisania Dairy Co.

232 A.D. 699

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1931
• Status: Published

Opinion

Order denying plaintiff’s motion • to have the court pass upon supplemental findings of fact and conclusions of law upon a phase of the case not covered by the original decision of the court, which motion was made after the judgment had been vacated, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent of assessing, for the loss of rental value, damages in the amount of $1,275. The judgment is modified accordingly by incorporating therein this added assessment of damages, and as so modified unanimously affirmed, without costs. New findings and conclusions will be made to sustain the judgment as modified. The court was not without power to make supplemental findings of fact and conclusions of law with respect to matters not covered by the original decision, at a time when, because of the fact that the judgment theretofore entered had been vacated as being unauthorized by the decision in the ease, no judgment had been made or entered. A different situation would have existed if the proposed findings were inconsistent with, or affected the validity of, the findings of fact and conclusions of law contained in the original decision. Judgment, in so far as appealed from by defendant, unanimously affirmed, with costs to plaintiff. No opinion. Present — Lazansky, P. J., Kapper, Carswell, Seudder and Tompkins, JJ. Settle order on notice.