Wright v. Nostrand

Headnote

This was a motion for restitution.

The action was brought by plaintiff as a receiver appointed in supplementary proceedings to set aside as fraudulent against creditors a conveyance made by the judgment debtor. He succeeded at Special Term, but the judgment was reversed by the General Term. On appeal to this court the order of General Term was reversed, and the judgment affirmed “ with costs.” (See 94 N. Y. 31 .) The remittitur was sent down and judgment perfected for costs, which was collected. A motion was subsequently made for reargument. The remittitur was recalled and reargument ordered, upon which the judgment was modified in some respects, among others as to costs, no costs being allowed to either party. (See 98 N. Y. 669 .)

The court say: “ This motion for restitution is based upon section 1323 of the Code. We entertain doubt whether restitution in this ease can properly be awarded under that section, and we will, therefore, deny the motion. The plaintiff has undoubtedly collected from Mrs. Nostrand $486.48 to which he is not entitled. The judgment which authorized its collection has been entirely swept away, and she, having paid that amount to save her property from sale, has undoubtedly the' right, in some form, to recover it back. She could probably' recover it by action; but the Superior Court upon whose execution the money was paid, and whose officer the plaintiff as receiver is, has undoubted jurisdiction over the whole matter, and can compel the repayment of the money either by the plaintiff or his attorney. Mrs. Nostrand must, therefore, seek her remedy by action or by proceedings in the court below as she may be advised.

“ The motion is denied, without costs.”