Westervelt v. Shapiro

Appellate Terms of the Supreme Court of New York

Westervelt v. Shapiro

132 N.Y.S. 744

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 9, 1912

StatusPublished

This text of 132 N.Y.S. 744 (Westervelt v. Shapiro) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Westervelt v. Shapiro, 132 N.Y.S. 744 (N.Y. Ct. App. 1912).

Pincite

Opinion

LEHMAN, J.

I have no doubt but that the Appellate Court has power to modify the order by imposing a different fine from that erroneously imposed by the court below, but ordinarily the function of determining the amount is best exercised by the court in which discretion is lodged in the first instance. In this case the amount of $510 was part of the fine actually imposed. The order of this court should have reversed the order of the court below, with costs and disbursements and remitted the proceeding to the court below for the imposition of such fine as lies within the discretion of the court below, unless the respondent stipulates to reduce the fine to the sum of $510. The order cannot, however, be modified by fixing a definite fine, and remitting the proceeding to the Special Term to fix an additional fine.

Motion to resettle in form proposed denied. All concur.

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LEHMAN, J.

I have no doubt but that the Appellate Court has power to modify the order by imposing a different fine from that erroneously imposed by the court below, but ordinarily the function of determining the amount is best exercised by the court in which discretion is lodged in the first instance. In this case the amount of $510 was part of the fine actually imposed. The order of this court should have reversed the order of the court below, with costs and disbursements and remitted the proceeding to the court below for the imposition of such fine as lies within the discretion of the court below, unless the respondent stipulates to reduce the fine to the sum of $510. The order cannot, however, be modified by fixing a definite fine, and remitting the proceeding to the Special Term to fix an additional fine.

Motion to resettle in form proposed denied. All concur.

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Bluebook (online)

132 N.Y.S. 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westervelt-v-shapiro-nyappterm-1912.