Cushing v. Vanderbilt
New York Court of Common Pleas
Motion by the defendant at special term to compel restitution by the plaintiff of moneys collected by him on an execution against the defendant on a judgment of the 7fh District Court, which judgment was reversed on appeal by the general term of this court.
1Opinion of the CourtJoseph F. Daly, J.
Where the judgment of reversal is not final, it is not a matter of right to have restitution of moneys collected on the judgment reversed. (Marvin v. The Brewster Iron M. Co., 56 N. Y. 671, and cases cited.) This is the rule in cases where the appellate court has power to order a new trial and does so. On appeal to the Court of Common Pleas from the District Courts of this city, there is no power to order a new trial; but the judgment of reversal, if .not a final determination of the rights of the parties, is no bar to.a new action by the respondent for the same cause. If the respondent have…
2Cases cited1 opinion
- Marvin v. . Brewster Iron Mining CompanyNew York Court of Appeals · 1874
3Cited by1 opinion
- Biel v. RandellAppellate Terms of the Supreme Court of New York · 1897