Duncan v. Laury — 249 A.D. 831

Majority

p. 831

Bernard Duncan, an Infant, by His Guardian ad Litem, William Duncan, Appellant, v. Jerome Laury, Also Known as Giromo Laury, Frederick Esposito and Louisa Esposito, Respondents. (Action No. 1.) Bernard Duncan, an Infant, by His Guardian ad Litem, William Duncan, Appellant, v. Jerome Laury, Also Known as Giromo Laury, and Louisa Esposito, Respondents. (Action No. 2.)

On the court’s own motion," the decision of this court handed down on December 28, 1936 [ante, p. 314], is hereby amended to read as follows: Judgment, in so far as an appeal is taken therefrom, dismissing the first, second, third, and fourth causes of action of the complaint in action No. 1 (contained in the first paragraph of the judgment) reversed on the law, with costs, and the action remitted to Special Term to enter judgment for plaintiff with costs, in form to be determined on additional proof on the subject of payments heretofore made on the judgment and of the rental value of the property. The judgment to be entered shall, in the discretion to be exercised at Special Term upon inquiry into the facts, provide either that a receiver be appointed to collect the rents, or that an equitable lien be impressed on the property and the sale thereof directed. Opinion by Davis, J. Lazansky, P. J., Hagarty, Carswell and Johnston, JJ., concur.