Gross v. Kathairo Chemical Co. — 113 N.Y.S. 243

Majority

p. 243

GROSS v. KATHAIRO CHEMICAL CO.

(Supreme Court, Appellate Division, Second Department.

December 3, 1908.)

Headnote

Appeal and Ebrob (§ 1185^[1] )—Determination of Cause—Amendment of Judgment of Reversal.

A motion by appellee to amend an order of reversal, entered by the Appellate Division of the Supreme Court, so as to read, “Reversed upon the law and not upon the facts,” will be denied, as not authorized by law.

[Ed. Note.—Eor other eases, see Appeal and Error, Cent, Dig. §§ 4636-4638; Dec. Dig. § 1185.*]

Appeal from Trial Term.

Action by Frank Gross against the Kathairo Chemical Company. From a judgment for plaintiff, defendant appeals. Motion by appellant to amend judgment of reversal.

Motion denied.

See, also, 127 App. Div. 165 , 111 N. Y. Supp. 481 .

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

Jones, McKinny & Steinbrink, for the motion.

Mayer & Gilbert, opposed.

We reversed a judgment for the plaintiff for damages for breach of a contract entered on a verdict, and the order denying the motion on the minutes for a new trial. This motion is by the plaintiff to have our order of reversal amended so as to read “Reversed upon the law and not upon the facts.” There is no such form of reversal in any case, and it would serve no purpose to grant the motion. It would in no way affect the status of the appeal to the Court of Appeals, but would be useless verbiage. The motion is made out of an entire lack of knowledge on the subject, which could only result from a failure to read the statute which is applicable, although we have been at much pains to point out the provisions of such statute and the practice in respect of orders of reversal. Brennan v. City of New York, 123 App. Div. 7 , 107 N. Y. Supp. 455 ; Duryea v. Zimmerman, 123 App. Div. 805 , 108 N. Y. Supp. 548 .

The motion is denied, with costs. All concur.