
    Edward G. Wasey, as Trustee in Bankruptcy of William A. Sturgeon, Bankrupt, Respondent, v. Edward Holbrook, Appellant, Impleaded with William A. Sturgeon and W. A. Sturgeon & Company, Defendants.
    First Department,
    May 5, 1911.
    Appeal — modification of judgment — entering judgment in accordance with order — extra allowance:
    Where the Appellate Division on modifying a judgment awarding plaintiff the value of certain stock, his costs and extra allowance, orders that the judgment be modified “so as to give the plaintiff relief as follows, and not otherwise; and so that all provisions of the said judgment inconsistent therewith, or giving the plaintiff any further relief be stricken therefrom,” and follows this with a provision that the defendant deliver the stock to plaintiff and account for the dividends and finally affirms the judgment as so modified, without costs to either party in the appellate court, the plaintiff has no right to insert in the modified judgment the provisions of the original judgment awarding him costs and an extra allowance.
    As the modified judgment dealt only with the stock in specie and-affixed no value to it there was no basis for an extra allowance.
    Appeal by the defendant, Edward Holbrook, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of January,. 1911.
    
      
      Peter B. Olney, for. the appellant.
    
      Henry Fletcher, for the respondent.
   Scott, J.:

Appeal by defendant Holbrook from an order denying his motion to amend a judgment entered upon an order of this /' court. ).

The action was by the trustee in bankruptcy of William A. Sturgeon to set aside, as void, under the provisions of the i Bankruptcy Act, the assignment of certain stock to the appellant. ' V The justice, at Special Term found the assignment to be void, j. but instead of directing its delivery to the assignee, rendered \ judgment against the appellant for a sum assumed to be the ( value of the stock, and also adjudged to the plaintiff costs and t ( an extra allowance. On appeal to this court the judgment [ was modified (141 App. Div. 336), the order of modification read- !> ing as follows: “ Ordered and adjudged that the judgment so ( appealed from be and the same is hereby modified so as to give ¡ ■ the plaintiff relief as follows, and not otherwise; and so that all- . j provisions of the said judgment inconsistent therewith, or giving ■ / the plaintiff any further relief be stricken therefrom. ” Then . ! followed a provision that appellant should deliver over the l stock to plaintiff, and should account to him for all dividends • ■ received thereon. And finally the judgment as so modified was affirmed without costs to either party in this court. When it came to entering the modified judgment upon this order, there -#as inserted,, in addition to' the provisions contained in the order of this court, the provision contained in the. original Special Term judgment awarding plaintiff his costs and an extra allowance. The purpose of the present motion is to strike out this latter provision. The motion should have been granted. The obvious effect of the order of this • court was to strike out of the judgment everything except the adjudication that the transfer of the stock was void, and to substitute an entirely new provision as to the relief which should be accorded to the plaintiff. The order expressly precluded plaintiff from receiving any other relief. So also the judgment for an extra allowance would be inconsistent with the modified judgment which dealt only with the stock in specie and affixed no value to it upon which an allowance could be based.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  