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Griswold v. Metropolitan El. R.

33 N.Y. St. Rep. 642 Court N.Y. Decision date 1890-10-28 English

Delivered by *643 Parker, J.

Contents

Majority

p. 642
Margaret D. Griswold, Resp’t, v. The Metropolitan El. R. Co., and The Manhattan R. Co., App’lts.[1]
(Court of Appeals, Second Division,
Filed October 28, 1890.)

Headnote

1. Appeal—Costs nr genbeal teem.
Where the appellant omitted to call the attention of the general term to-the point upon which it prevails in this court, the costs of the general term will not be granted to him on modification of its judgment.
3. Same.
Where the counsel for appellant upon the argument of the appeal recommended a modification of the judgment and pointed out the manner for determining the amount which should be deducted therefrom, he cannot raise the question in this court on obtaining such modification that it was not a case within the rule authorizing an affirmance of the judgment, after modification pursuant to stipulation.
Motion to amend remittitur.
Brainard Tolies, for motion; Inglis Stuart, opposed,

First. The remittitur must be so amended as to conform to the opinion in respect to the costs of this court which in the event of an affirmance of the judgment are awarded to the appellant.

Second. The motion to further amend so as to give the appellant costs of the general term should the stipulation be made which will result in an affirmance of the judgment, is denied. The defendant omitted to call the attention of the general term to the point upon which it prevails in this court. Had it done so this appeal might, and probably would, have been unnecessary. Its request to be awarded costs of that court, therefore, is wholly without equitable justification.

Third. The appellant further insists that this case does not come within the rule authorizing this court to permit an affirmance of the judgment after modification pursuant to stipulation. In view of the fact that the counsel for the appellant upon the .argument of the appeal recommended a modification of the judgment and pointed out the manner for determining the amount which should be deducted therefrom, we need not consider the argument now presented. The amendment requested in that respect is denied.

All concur, except Haight, J., absent.