Costar v. Peters
The Superior Court of New York City
Motion to amend an order reversing a judgment. This was an action of ejectment brought to recover possession of a vault under the sidewalk of Mercer-street. On the first trial, the plaintiff had a verdict, on which judgment was entered and execution issued, and the plaintiff was put in possession of the vault. The general term, on appeal, reversed the judgment, and ordered a new trial.
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Motion to amend an order reversing a judgment. This was an action of ejectment brought to recover possession of a vault under the sidewalk of Mercer-street. On the first trial, the plaintiff had a verdict, on which judgment was entered and execution issued, and the plaintiff was put in possession of the vault. The general term, on appeal, reversed the judgment, and ordered a new trial. The defendant now moved for an order amending the order of reversal so that it should direct restitution to him of the vault in question. Notice of the motion was served" on B. F. Beekman, who had purchased…
1Opinion of the Court
By the Court.*—Robertson, C. J.
This is an application for an amendment of the judgment of reversal in this case, by adding thereto an award of restitution to the defendant of the premises which are the subject of controversy in it, and of which the plaintiff obtained possession under an execution on the reversed judgment. Section 330 of the code of procedure is not imperative, the word used being “may,” not “shall,” and leaves the matter open for the exercise of discretion by the court. As there is, possibly, no ground for exercising discretion where, a judgment of reversal is absolute, and…
2Cases cited2 opinions
- Estus v. BaldwinNew York Supreme Court · 1853
- Britton v. PhillipsNew York Supreme Court · 1862