Winslow v. Carthage, W. & S. H. Railroad

New York Supreme Court

Winslow v. Carthage, W. & S. H. Railroad

34 N.Y.S. 732, 95 N.Y. Sup. Ct. 619, 68 N.Y. St. Rep. 550, 88 Hun 619

DecidedJuly 5, 1895

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This text of 34 N.Y.S. 732 (Winslow v. Carthage, W. & S. H. Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Winslow v. Carthage, W. & S. H. Railroad, 34 N.Y.S. 732, 95 N.Y. Sup. Ct. 619, 68 N.Y. St. Rep. 550, 88 Hun 619 (N.Y. Super. Ct. 1895).

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Opinion

MARTIN, J.

Upon a former appeal from this order by the plaintiff, Norris Winslow, as trustee, this court modified it by striking out the second paragraph, beginning with the words, “It is further ordered,” and ending with the words, “shall be discharged from all further liability in relation to the said fund,” thus leaving the order, as modified, so that it directed the present appellant, the railroad company, to pay to the respondent $500 for his fees, and $2.67 for his disbursements, with that portion of the order which required the respondent upon this appeal to deliver to the appellant herein its bonds to the amount of $160,000, which were in his hands, upon payment of such fees, stricken out, at least so far as the plaintiff, the then appellant, was concerned. 32 N. Y. Supp. 56. The whole order was not reversed upon the former appeal for the sole reason that the Carthage, Watertown & Sacket’s Harbor Railroad Company had not appealed, and it was, therefore, assumed that it was satisfied with it Upon this appeal the question is presented whether the whole order should or not be reversed. Although it is difficult to discover any principle upon which the special term could properly require the appellant to pay the respondent $500 for his fees, yet, without discussing that question, and independent of it, we are of the opinion that the whole order should be reversed, so as to avoid any complications that may arise by reason of the reversal of a portion of the order and leaving the rest undisturbed; as, under such circumstances, it may perhaps be claimed with some show of reason that the respondent is entitled to recover his fees and disbursements without complying with that portion of the order which required him, upon the payment of his fees, to deliver the bonds in his hands to the railroad company. It is manifest from the opinion of this court delivered upon the former appeal that, if the present appellant had [734]*734then appealed from the whole order, it would have been reversed. As it is now appealed from, in view of our former decision, we think it should be reversed, thus leaving the whole matter open to future action by the court below, thereby avoiding the complications suggested. But, as the appellant did not join in the former appeal, we think no costs should be allowed.

Order reversed, .without costs to either party.

HARDIN, P. J., concurred. MERWIN, J., concurred in result.

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MARTIN, J.

Upon a former appeal from this order by the plaintiff, Norris Winslow, as trustee, this court modified it by striking out the second paragraph, beginning with the words, “It is further ordered,” and ending with the words, “shall be discharged from all further liability in relation to the said fund,” thus leaving the order, as modified, so that it directed the present appellant, the railroad company, to pay to the respondent $500 for his fees, and $2.67 for his disbursements, with that portion of the order which required the respondent upon this appeal to deliver to the appellant herein its bonds to the amount of $160,000, which were in his hands, upon payment of such fees, stricken out, at least so far as the plaintiff, the then appellant, was concerned. 32 N. Y. Supp. 56. The whole order was not reversed upon the former appeal for the sole reason that the Carthage, Watertown & Sacket’s Harbor Railroad Company had not appealed, and it was, therefore, assumed that it was satisfied with it Upon this appeal the question is presented whether the whole order should or not be reversed. Although it is difficult to discover any principle upon which the special term could properly require the appellant to pay the respondent $500 for his fees, yet, without discussing that question, and independent of it, we are of the opinion that the whole order should be reversed, so as to avoid any complications that may arise by reason of the reversal of a portion of the order and leaving the rest undisturbed; as, under such circumstances, it may perhaps be claimed with some show of reason that the respondent is entitled to recover his fees and disbursements without complying with that portion of the order which required him, upon the payment of his fees, to deliver the bonds in his hands to the railroad company. It is manifest from the opinion of this court delivered upon the former appeal that, if the present appellant had [734]*734then appealed from the whole order, it would have been reversed. As it is now appealed from, in view of our former decision, we think it should be reversed, thus leaving the whole matter open to future action by the court below, thereby avoiding the complications suggested. But, as the appellant did not join in the former appeal, we think no costs should be allowed.

Order reversed, .without costs to either party.

HARDIN, P. J., concurred. MERWIN, J., concurred in result.

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34 N.Y.S. 732, 95 N.Y. Sup. Ct. 619, 68 N.Y. St. Rep. 550, 88 Hun 619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winslow-v-carthage-w-s-h-railroad-nysupct-1895.

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