
    PLATT v. WITHINGTON.
    
      N. Y. Supreme Court, First District, Chambers;
    
      July, 1890.
    1. Appeal; restitution vpon reversal.] Code Civ. Pro., § 1323, conferring power upon the court of appeals and the general term to grant restitution after reversal on appeal, was not intended to, nor does it, negative the authority of the supreme court at special term to grant the same relief.
    
    2. The same.] Where a party after sale in partition has been deprived of the use of proceeds of the sale pending appeal from an erroneous judgment, he is entitled upon reversal to restitution of such sum as represents the difference between the full legal rate of interest and that paid by a trust company which held the fund pending the appeal, and also of costs paid out of the fund under the original judgment.
    Motion for restitution.
    This was an action for partition. The issue lay between the defendant Maria ft. Withington and her brothers and sisters, co-defendants. She claimed that under her father’s will she was entitled to one half interest in the property left by him. Her brothers and sisters contended that the testator died intestate as to the same. The issues were tried at special term and judgment was entered against the said defendant. A referee was appointed, who made a report, and a decree was entered for the sale of the property, and such sale was had. Mrs. Withington appealed to the general term, giving a bond staying the disposition of the proceeds of the sale pending the appeal, which were deposited with the U. S. Trust Oo. The general term affirmed the judgment, but upon appeal to the court of appeals, it was reversed, with costs of the court of appeals and of the general term. The successful defendant now moves for restitution of the costs, and for the difference between the amount of interest paid by the trust company upon the moneys deposited with it and the legal rate.
    
      Arnouw, Ritch & Woodford, for the motion.
    
      Edward S. Clinch, opposed.
    
      
       Compare the preceding case.
    
   Beach, J.

I have never known the power of this court questioned to award restitution summarily upon reversal of a judgment. Section 1323 Code of Civil Procedure, confers that power upon the appellate court or the General Term of the same court, as the case may be, but was not intended to, nor does it, negative the authority of this court. This motion was properly made at chambers, and the conclusion seems to be supported by Wright v. Van Nostrand (100 N. Y. 616). In Wallace, ex’r, v. Berdell (98 Id. 480), restoration to possession of land was held not to effect complete restitution, and the court ordered an accounting for and payment of mesne profits. I do not perceive any distinction in principle between mesne profits of realty and interest on moneys. It would be less than complete restitution to award repayment of a principal sum, the moving party having been deprived of its use by an erroneous judgment. An examination of the papers shows that the order appealed from and affirmed in Market National Bank v. Pacific National Bank (102 N. Y. 464), awarded interest on the sum collected from date of payment. This is a direct adjudication upon the point. The costs and allowances awarded by the Special Term were. paid from a fund belonging to the moving party, and their amount should be refunded with interest. She has the same right to a refund of the General Term costs paid and the difference between interest paid by the trust company and .the legal rate. Motion granted.  