Kennedy v. O'Brien

Decided May 15, 1851

New York Court of Common Pleas · decided 1851-05-15

Tras was an action in the Marine Court, to recover money paid by the plaintiff on a judgment of that court, which was afterwards reversed upon appeal. The plaintiff proved his payment of the money upon an execution issued pursuant to the judgment. He then offered in evidence a copy of an order, entered in the appellate court, reversing the judgment, and which was certified by the clerk, without a seal. No judgment of reversal had been entered.

Decided 1851-05-15

By the Court. Ingraham, First J.

¶1There can be no doubt of the prbpriety of the decision in the court below. The action was brought to recover back moneys paid on execution, upon the ground of reversal of the judgment by this court.

¶2The evidence offered was not sufficient to .establish that fact. There should have been a judgment entered upon the appeal and decision in this court, and the judgment-record would have been the proper evidence. The witness who had custody of the judgment books, stated that no judgment had been entered.

¶3The proper course, where a party appealing is entitled to restoration, is a motion in this court for restoration; and on *42that motion being granted, it becomes a part of the judgment in this court, and the amount can be collected by execution, with the costs.

¶4The judgment in this case must be affirmed.