Zapf v. Carter — 90 A.D. 407

Majority

p. 407

Francis X. Zapf, Appellant, v. Lulu N. Carter, Respondent.

Headnote

Form, of order entered, upon a remittitur from the Court of Appeals — remedy if the remittitur ie erroneous — an order at Special Term concludes a party until it is reversed on appeal.

An order of the Supreme Court, entered upon a remittitur transmitted to it by the Court of Appeals, must conform strictly to the remittitur. If the remittitur is erroneous in any respect the remedy is by an application to the Court of Appeals to amend it.

An order of the Special Term, denying an application properly made to that court, is valid until reversed; 'and if no appeal is taken from the Special Term order, the Appellate Division will not entertain a similar application.

Motion by the respondent, Lulu R. Carter, for an order granting judgment absolute after the coming down of the remittitur from the Court of Appeals, which did not direct judgment absolute for the respondent.

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, 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

p. 408

as the authority for the order of the lower court: The Court of

Appeals determines by its remittitur when judgment absolute may be entered. (Code Civ. Proc. § 194.) If thereisany error inits 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 id. 358 ; Parish v. Parish, 87 App. Div. 430 ; 2 Rumsey’s Pr. [2d ed.] 875.)

The motion is denied, with ten dollars costs.

All concurred.

Motion for judgment absolute denied, with ten dollars costs.

Cases cited

In re the Protestant Episcopal Public School 86 N. Y. 396 N.Y. 1881-10-11 p. 408