Spence v. . Ham
New York Court of Appeals
Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 2, 1898, reversing a judgment in favor of plaintiff entered upon the report of a referee.
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Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 2, 1898, reversing a judgment in favor of plaintiff entered upon the report of a referee. This action was brought to recover a balance alleged to be due the plaintiff from the defendant upon a building contract entered into by them on the 15th of September, 1888. The plaintiff alleged performance, admitted the payment of $2,500 on account, and sought to recover a balance of $2,044.97, which included the sum of $644.97 claimed to be due for extra work. The defendant, among other…
1Opinion of the CourtVann, J.
According to the opinion of the Appellate Division it was the intention of that court to reverse the judgment upon the facts as well as the law, but as the order of reversal is silent upon the subject, the statute compels us to presume that the judgment was not reversed upon a question of fact. (Code Civ. Pro. § 1338; Bomeisler v. Forster, 154 N. Y. 229; Koehler v. Hughes, 148 N. Y. 507.)
It is important for counsel in preparing a judgment or order to carry into effect the decision of an Appellate Division, to see that it is so drawn as to properly express what the court actually decided. We…
2Cases cited12 opinions
- Van Clief v. . Van VechtenNew York Court of Appeals · 1892
- Heckmann v. . PinkneyNew York Court of Appeals · 1880
- Woodward v. . FullerNew York Court of Appeals · 1880
- Fairchild v. . Edson Edson v. . BartowNew York Court of Appeals · 1897
- Gannon v. . McGuireNew York Court of Appeals · 1899
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- United States Ex Rel. Johnson v. Morley Const. Co.Court of Appeals for the Second Circuit · 1938
- McClure v. . LeaycraftNew York Court of Appeals · 1905
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