Nicoll v. Burke — 45 N.Y. Super. Ct. 526

Majority

p. 526

CHARLOTTE ANN NICOLL, et al., Executors, &c., Plaintiffs, v. EDWARD BURKE, Defendant.

Headnote

cOOTXHT OF APPEALS, JUDGMENT OF.

"Where the court of appeals reverses the judgment of the court below, unless the plaintiff stipulates to deduct therefrom certain amounts with interest, &c., but does not direct that- plaintiffs’ costs on appeal to the general term be waived or deducted, this court will not modify the judgment by any change of the con-editions therein.

p. 527

Before Sedgwick and Freedman, JJ.

Decided December 1, 1879.

Motion at general term to modify the judgment, as entered on the remittitur from the court of appeals.

The judgment pronounced by the court of appeals reverses the judgment of this court and orders a new trial, unless the plaintiffs stipulate to deduct certain amounts with interest; but, if they do thus stipulate, the judgment, as reduced by the stipulation, is- ordered to stand affirmed in every other particular. In thus prescribing and enumerating certain specific conditions upon which the judgment is to stand, the court of appeals did not include that the plaintiffs should waive the costs of the appeal to the general term. It certainly could have done so ; but as it did not see fit to do so, it is not for this court to change the conditions upon which the plaintiffs may elect to end the litigation.

Sedgwick, J., concurred.