
    (7 Misc. Rep. 689.)
    CARLSON v. WINTERSON.
    (Common Pleas of New York City and County, General Term.
    April 2, 1894.)
    Restitution after Reversal—When Denied.
    An application for restitution after reversal is properly denied where it appears that the action had been retried, and a recovery had by the same parties as before.
    Action by Louise Carlson against Maria L. Winterson on a promissory note. A judgment in favor of plaintiff was reversed on appeal (22 M. Y. Supp. 553), and defendant now moves for restitution. Denied.
    Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.
    H. M. Hitchings, for appellant.
    E. F. Bulland, for respondent.
   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.  