Investment Registry of America, Inc. v. Moore

Majority

p. 954

Investment Registry of America, Inc., Appellant, v. George G. Moore, Respondent.

Headnote

Appeal — judgment entered on decision of Appellate Division to conform, thereto — power of Special Term to amend judgment by directing dismissal of counterclaim without prejudice.

Appeal from an order of the Supreme Court, entered in the New York county clerk’s office October 6, 1920, denying plaintiff’s motion for a resettlement of a previous order which granted only qualifiedly the plaintiff’s motion to amend a judgment previously entered in this action, and also from an order entered September 27, 1920, granting only qualifiedly plaintiff’s motion to amend a judgment previously entered in this action.

When this court reversed the order of the Special Term "and granted plaintiff’s motion for judgment on the pleadings [See 192 App. Div. 153 ], it did not state that the reversal was “ without prejudice.” Plaintiff was entitled to have its judgment entered upon the Appellate Division’s decision in precise conformity therewith and the Special Term was without power to amend the judgment by directing a dismissal of the counterclaim ‘ ‘ without prejudice. ’ ’ The plaintiff’s motion to resettle the order of September 27, 1920, reciting that it was made upon motion of defendant’s attorneys should also have been granted. The order appealed from should be reversed, with ten dollars costs and disbursements and plaintiff’s motion to amend the judgment by the omission of the words “ without prejudice ” should be granted, with ten dollars costs. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. Order reversed, with ten dollars costs and disbursements, and motion to amend judgment by omitting the words “ without prejudice ” granted, with ten dollars costs,