Carlson v. Winterson , 7 Misc. 689 ( 1894 )

PER CURIAM.

The granting of this motion is discretionary, and the provisions of the Code of Civil Procedure respecting restitution on the reversal or vacation of a judgment or order are not exclusive. The party has his remedy by action. Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963; Baylies, New Trials, 191. Since the submission of this motion it appears that the action has been retried in the court below, and that the trial has again resulted in a verdict and judgment for plaintiff. We deem it, therefore, a proper exercise of our discretion to deny restitution upon summary application therefor. ¡No costs of this motion.