Hyperlawhypertext legal database Zapf v. Carter 86 N.Y.S. 175

← Cases

Zapf v. Carter

86 N.Y.S. 175 Court N.Y. App. Div. Decision date 1904-01-19 English

Delivered by SPRING, J.

Contents

Majority

p. 175
(90 App. Div. 407.)
ZAPF v. CARTER.
(Supreme Court, Appellate Division, Fourth Department.
January 19, 1904.)

Headnote

1. Appeals—Remittitur—Order oe Lower Court.
Under Code Civ. Proe. § .194, providing for a remittitur by the Court of Appeals, and the rendition by it of judgment absolute in certain cases, to be enforced by the court below, the Supreme Court must conform its order strictly to the remittitur, and error in the remittitur in failing to enter judgment absolute can be corrected only by the Court of Appeals.
Action by Francis X. Zapf against Lulu N. Carter, in which an appeal was taken by plaintiff to the Court of Appeals, and there dismissed, and remitted to the Supreme Court, where an order was entered at Special Term making the judgment of the Court of Appeals that of the Supreme Court. On motion by defendant for judgment absolute. Denied.
Argued before McLENNAN, P. J., and SPRING. WILLIAMS. HISCOCK, and STOVER, JJ.
George C. Carter, for the motion.
John Conboy, opposed.

The respondent presents a copy of the remittitur of the Court of Appeals, and asks that an order be granted for judgment absolute. The appeal in this case was dismissed by the Court of Appeals ( 68 N. E. 1126 ), and upon the coming down of the remittitur the respondent applied to the Special Term for an order making the judgment of the Court of Appeals the judgment of the Supreme Court. The Special Term granted the motion. The order' was entered, but did not provide for judgment absolute in favor of the respondent. The order is not appealed from, and we might well rest our denial of the motion upon the ground that the order granted is binding upon this court, as it was proper to make the application to the Special Term, and its order is valid until reversed. Waiving that question, however, there is an insurmountable barrier to the motion. The appeal was dismissed by the Court of Appeals, and its entry does not authorize the entry of judgment absolute. The remittitur contains the judgment of the Court of Appeals, and is sent down to the court below as the authority for the order of the lower court. The Court of Appeals determines by its remittitur when judgment ab

p. 176
solute may be entered. Section 194, Code Civ. Proc. If there is any error in its remittitur in failing to order judgment absolute when the respondent is entitled to that relief, or if erroneous in any respect, the court issuing it may amend it. The order of the Supreme Court must conform strictly to the remittitur. That court has no power to vary the terms of this judgment of the Court of Appeals. Matter of Protestant E. Public School, 86 N. Y. 396 ; Wilkins v. Earle, 46 N. Y. 358 ; Parish v. Delafield, 87 App. Div.430, 84 N. Y. Supp. 506 ; Rumsey’s Practice (2d Ed.) vol. 2, p. 875.

The motion is denied, with $10 costs. All concm-

Cases cited