Platt v. Withington

25 Abb. N. Cas. 103

Opinion

Beach, J.

I have never known the power of this court questioned to award restitution summarily upon reversal of a judgment. Section 1323 Code of Civil Procedure, confers that power upon the appellate court or the General Term of the same court, as the case may be, but was not intended to, nor does it, negative the authority of this court. This motion was properly made at chambers, and the conclusion seems to be supported by Wright v. Van Nostrand (100 N. Y. 616). In Wallace, ex’r, v. Berdell (98 Id. 480), restoration to possession of land was held not to effect complete restitution, and the court ordered an accounting for and payment of mesne profits. I do not perceive any distinction in principle between mesne profits of realty and interest on moneys. It would be less than complete restitution to award repayment of a principal sum, the moving party having been deprived of its use by an erroneous judgment. An examination of the papers shows that the order appealed from and affirmed in Market National Bank v. Pacific National Bank (102 N. Y. 464), awarded interest on the sum collected from date of payment. This is a direct adjudication upon the point. The costs and allowances awarded by the Special Term were. paid from a fund belonging to the moving party, and their amount should be refunded with interest. She has the same right to a refund of the General Term costs paid and the difference between interest paid by the trust company and .the legal rate. Motion granted.