Parrott v. Sawyer

33 N.Y. Sup. Ct. 466

Opinion

By the Court :

The order in this case is undoubtedly appealable to this court, and inasmuch as it is based solely upon the question of power in the Special Term to make the order, it is probably appealable to the Court of Appeals. On the appeal to the General Term from the judgment in this case upon exceptions, the judgment was reversed and a new trial granted, and on further appeal to the Court of Appeals the determination of this court was affirmed, and judgment absolute ordered against the plaintiff upon his stipulation, with costs.

The only question is whether the Special Term had power, upon the remittitur, to entertain a motion for an additional allowance. We are of opinion that the form of the remittitur from the Court of Appeals did not preclude such a motion, and that the defendant was at liberty to apply to the discretion of the Special Term for such allowance.

The application was denied on the ground that the granting of such allowance Would be adding to the judgment of the Court of Appeals, and for that reason solely, under the authority of Eldridge v. Strenz (39 Supr. Ct., 295), and of the Court of Appeals in McGregor v. Buel (1 Keyes, 153), the court held that no power existed to entertain the motion.

The question is an interesting one, important to the profession, and should be determined by the court of last resort. We do not consider the eases cited as determining the proposition involved in the motion.

Order reversed purely on the question of power, without costs to either party.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed, without costs.