Kroner v. Reilly

¶1The exercise of the power to order restitution under section 1323 of the • Code of Civil Procedure is discretionary. (Kidd v. Curry, 29 Hun, 215.) The successful appellant may be remitted to his action. (Lott v. Swezey, 29 Barb. 87.) The disobedience of an order of restitution is punishable as a contempt. (Devlin v. Hinman, 40 App. Div. 101; affd., 161 N. Y. 115.) Under the peculiar circumstances of the present case we do not think the defeated respondent should be subjected to so harsh a remedy, although she may be and should be compelled to repay the money which she has received if- that end can be obtained by judgment and execution. Motion for restitution denied, without costs.