Kroner v. Reilly — 65 N.Y.S. 1137

Majority

p. 1137

KRONER, Respondent, v. REILLY, Appellant.

(Supreme Court, Appellate Division, Second Department.

June 12, 1900.)

Headnote

Action by Marie Kroner against John F. Reilly.

The exercise of the power to order restitution under section 1323 of the,

p. 1138

Code of Civil Procedure is discretionary. Kidd v. Curry, 29 Hun, 215 . The successful appellant may he remitted to his action. Lott v. Swezey, 29 Barb. 87 . The disobedience of an order of restitution is punishable as a contempt. Devlin v. Hinman, 40 App. Div. 101 , 57 N. Y. Supp. 663 , affirmed 161 N. Y. 115 , 55 N. E. 386 . Under the peculiar circumstances of the present case, we do not think the - defeated respondent should be subjected to so harsh a remedy, although she may be, and should he, compelled to repay the money which she has received, if that end can be attained by judgment and execution. Motion for restitution denied, without costs. See 63 N. Y. Supp. 527 , 1111; 64 N. Y. Supp. 1138 .

Cases cited

Lott v. Swezey 29 Barb. 87 N.Y. Sup. Ct. 1859-02-14 p. 1138
Devlin v. Hinman 161 N. Y. 115 N.Y. 1899-11-28 p. 1138