¶1The granting of this motion is discretionary, and the provisions of the Code of Civil Procedure respecting restitution on the reversal or vacation of a judgment or order are not exclusive. The party has his remedy by action. Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963; Baylies, New Trials, 191. Since the submission of this motion it appears that the action has been retried in the court below, and that the trial has again resulted in a verdict and judgment for plaintiff. We deem it, therefore, a proper exercise of our discretion to deny restitution upon summary application therefor. ¡No costs of this motion.
28 N.Y.S. 20
Carlson v. Winterson
New York Court of Common Pleas
Decided April 2, 1894
New York Court of Common Pleas · decided 1894-04-02
Action by Louise Carlson against Maria L. Winterson on a promissory note. A judgment in favor of plaintiff was reversed on appeal (22 M. Y. Supp. 553), and defendant now moves for restitution. Denied.
Relies on Haebler v. . Myers
Decided 1894-04-02