Cushing v. Vanderbilt

Citations

• 7 Daly 512

Syllabus

<p>Where, on appeal from a judgment of a District Coart of the city of New York to this court, the appellant desires, in addition to a reversal of the judgment, the restitution of money collected from him under an execution on the judgment appealed from, he should apply at the time of arguing his appeal for restitution in case the judgment should be reversed, and in case he omits to do so, but succeeds in having the judgment reversed, he should apply for a reargument on that point.</p> <p>Where the judgment of reversal is not a final determination of the rights of the parties, restitution of the money collected on the judgment reversed is not a matter of right, and on appeals from District Courts, in which there is no power in this court to order a new trial, but a new suit may be brought to which the judgment of reversal would not be a bar, the general term of this court which hears and decides the appeal is the proper branch o£ this court to decide the question of restitution, and the special term will not entertain the application.</p>