Hayes v. Nourse
New York Court of Appeals
Ellen T. Hayes .brought this action against Charles J. Nourse, Jr., to recover the amount of a deposit made upon an auction sale of real estate by the defendant, upon the ground that the title was not marketable.
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Ellen T. Hayes .brought this action against Charles J. Nourse, Jr., to recover the amount of a deposit made upon an auction sale of real estate by the defendant, upon the ground that the title was not marketable. She recovered judgment before a referee to whom the case was referred, which judgment was affirmed by the General Term of the court of common pleas ; and the defendant thereupon paid the amount of the judgments, $3,652.25, and thereafter appealed to the court of appeals, where the said judgments were reversed, and a new trial granted, June 25, 1889. (See 114 N. Y. 595.) The…
1Opinion of the CourtDaly, J.
The motion for restitution should be made at the general term, this action having been tried in this court. The Code (§ 1323) directs that where a final judgment is reversed upon appeal, the appellate court or the general term of the same court (i. e., the court where the action is tried) may compel restitution. This enactment confines the exer*97cise of the powers to the tribunals expressly mentioned, and excludes all others, among them the special term of the court. The former Code (§§ 330, 369) conferred the power upon the appellate court, but it was exercised by the trial court by virtue of…
2Cases cited6 opinions
- Hayes v. . NourseNew York Court of Appeals · 1887
- Safford v. StevensCourt for the Trial of Impeachments and Correction of Errors · 1828
- Lott v. SwezeyNew York Supreme Court · 1859
- O'Gara v. . KearneyNew York Court of Appeals · 1879
- Murray v. . BerdellNew York Court of Appeals · 1885
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3Cited by2 opinions
- Carlson v. WintersonNew York Court of Common Pleas · 1895
- Goepel v. Robinson Machine Co.Appellate Division of the Supreme Court of the State of New York · 1907