Rand v. Diamond

273 A.D. 859, 76 N.Y.S.2d 670, 1948 N.Y. App. Div. LEXIS 4991

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1948
• Status: Published

Opinion

Appeal from an order-denying a motion for leave to issue execution pursuant to sections 651 and 652 of the Civil Practice Act; and from a further order denying a motion denominated as one for “reargument”. Orders reversed on the law and the facts, with one bill of $10 costs and disbursements to appellant, and the issue of service raised by the affidavits referred to an official referee to hear and report, with his opinion, to Special Term, Part I, of the Supreme Court, Kings County. If, after such hearing, it be found that the judgment was properly obtained and is unpaid and unsatisfied, the motion for leave to issue execution should be granted. (Matter of Molnar, 253 App. Div. 895.) The motion misnamed by appellant as one for “reargument” was, in fact, an application for leave to renew upon additional papers and as such, an appeal will lie from the order entered thereon. (Beletsky v. Third Are. B. B. Go., 44 App. Div. 632; City of New York v. Montague, 149 App. Div. 601.) Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.