Frost v. Frost , 39 N.Y.S. 856 ( 1896 )

Ross, J.

The only judgment which could be rendered upon the appeal by the County Court was to affirm or reverse the judgment of the justice in whole or in part. Code Civ. Pro.,-, §" 3063. And the effect of a reversal is to leave the parties litigant in the -same condition as they were prior to the rendition of any judgment. Freeman on Judgments, § 481; Platz v. B. & C. C. & V. Co., 7 Misc. Rep. 476.

In a proper.case restitution may be compelled, but if not made-upon the hearing, must be enforced by a motion pursuant to the terms of section 3058, Code of Civil Procedure (see Wait’s Law and Practice, 1031), and cannot be ordered, as of eonrse, by the clerk. Jacks v. Darrin, 1 Abb. Pr. 233,

The Special Term case of Estus v. Baldwin, 9 How. 80, cited by the defendant’s counsel, apparently was a decision upon the merits, for the court says: “ But where the judgment of the appellate court is the end of the action * * * I think it is imperative upon the court to order restitution.” * * *

' For anything that appears to the contrary, a restitution may have been asked in the Estus case upon the hearing, but in this case the judgment was not upon the merits, but was upon an error in fact, which did not affect the merits at all.

In Ellert v. Kelly, 10 How. Pr. 392-4, the following language is used: “When we are satisfied that all proper evidence was received, and the whole case is developed, we have power to order final judgment for the party prevailing on appeal; and when not so satisfied, we can only reverse and leave the parties to a further prosecution.”

A motion to vacate the judgment and to set aside the execution . issued- thereon is granted, and the same and each of them are hereby vacated and set aside, with ,$10 costs to the plaintiff of this motion; but without prejudice to the defendant entering a proper judgment upon the decision rendered upon the appeal herein, and to make such motion as she may be advised with reference to restitution.

Ordered accordingly.