Legal Opinion

Platt v. Withington

New York Supreme Court

Decided July 15, 1890PublishedCited by 1 opinion

Motion for restitution. This was an action for partition. The issue lay between the defendant Maria ft. Withington and her brothers and sisters, co-defendants. She claimed that under her father’s will she was entitled to one half interest in the property left by him. Her brothers and sisters contended that the testator died intestate as to the same. The issues were tried at special term and judgment was entered against the said defendant.

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Motion for restitution. This was an action for partition. The issue lay between the defendant Maria ft. Withington and her brothers and sisters, co-defendants. She claimed that under her father’s will she was entitled to one half interest in the property left by him. Her brothers and sisters contended that the testator died intestate as to the same. The issues were tried at special term and judgment was entered against the said defendant. A referee was appointed, who made a report, and a decree was entered for the sale of the property, and such sale was had. Mrs. Withington appealed to the…

1Opinion of the CourtBeach, J.

I have never known the power of this court questioned to award restitution summarily upon reversal of a judgment. Section 1323 Code of Civil Procedure, confers that power upon the appellate court or the General Term of the same court, as the case may be, but was not intended to, nor does it, negative the authority of this court. This motion was properly made at chambers, and the conclusion seems to be supported by Wright v. Van Nostrand (100 N. Y. 616). In Wallace, ex’r, v. Berdell (98 Id. 480), restoration to possession of land was held not to effect complete restitution, and the court…

2Cases cited1 opinion

  1. Market National Bank v. Pacific National BankNew York Court of Appeals · 1886

3Cited by1 opinion

  1. Laronga v. LarongaCity of New York Municipal Court · 1945

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