Gotham Factors Co. v. Ifan Realty Corp. , 1 A.D.2d 805 ( 1956 )

Resettled order directing reference to compute and authorizing the entry of judgment thereon unanimously modified to the extent that any judgment to be entered shall provide that plaintiff shall first apply its lien on the award in condemnation to "such judgment before proceeding with the enforcement thereof in any other manner authorized by law. (Cf. Cyllene Corp. v. Eisen, 272 N. Y. 526, and Matter of City of New York [Boscobel Ave.], 242 App. Div. 392.) While it was not proper to amend the order by notice of resettlement, as distinguished from the making of a motion, defendant, both at Special Term and before this court, had a complete opportunity to express its views with respect to the relief obtained. Accordingly, we regard the defect as a merely technical one not affecting any substantial right (Civ. Prac. Act, § 105). But, in view of the technical irregularity, neither side is entitled to costs of this appeal as against the other. Order, as so modified, is affirmed. Settle order on notice. Concur — Peck, P. J., Breitel, Bastow, Botein and Rabin, JJ.