Horwitz v. Reinert — 84 N.Y.S. 124

Majority

p. 124

HORWITZ v. REINERT.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Appeal—Affirmance.

W'here the judgment for plaintiff must be affirmed, and in fact has been satisfied, an order vacating the order approving the undertaking on appeal, whether proper or not, will be left undisturbed on appeal therefrom, without costs.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Isaac Horwitz against Ferdinand Reinert. From an order setting aside a stay of execution and an order denying defendant’s motion to resettle the same in favor of plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

James E. Smith, for appellant.

Nathaniel Levy, for respondent.

On February 25th notice of appeal in an action entitled above, and copy of an undertaking dated February 21, 1903, were served. On March 2d notice of exceptions to the form and sufficiency was served. On March 6th notice of justification, first for March nth and then for March 9th, and in each case returned as not within the time provided by the statute. On. March 9th the undertaking was approved, but subsequently it was vacated by the same justice on an order to show cause. This was seemingly proper, under section 315 of the municipal court act (Laws 1902, p. 1580, c. 580). Whether so or not, however, as the judgment itself must be affirmed, and has in fact been satisfied, as stated in his brief by counsel for plaintiff, the orders above mentioned may be left undisturbed, without costs to either party.

Orders affirmed, without costs to either party.