
    Abraham Biel, Respondent, v. Katie Randell, Appellant.
    (Supreme Court, Appellate Term,
    May, 1897.)
    Restitution — Rower of Appellate Term to order.
    The Appellate Term of the Supreme Court has power to - order ■ restitution of moneys collected upon.a District Court judgment which was reversed by the Court of Common Pleas.
    Motion by appellant for restitution of .$240, received by respondent upon a judgment in this action rendered by the justice of the Fourth District Court on September 24, 1894, in favor of the respondent against the appellant, who was interpleaded in the said court in place of the United States Grand Lodge of the Independent Order of the Sons of Benjamin. Upon the inter-pleader being allowed, the Grand Lodge paid into the. court $240, being the fund in dispute less $10 costs of interpleader. Upon recovering judgment the plaintifi applied for and received from, the clerk of the court the said stim of $240. The defendant obtained a reversal of the' judgment on appeal therefrom to1 the Court of Common Pleas, which ordered a new trial in the District .Court. The reversal was ordered in July, 1895, and the new trial was had December 16, 1895, resulting in a judgment in favor of the defendant for $249.50. A motion for restitution was then made by defendant at the Special Term of the Common Pleas December 31, 1895, and denied on the authority of Cushing v. Vanderbilt, 1 Daly, 512.
    Alfred B. Jaworower, for motion.
    A. H. Berrick, opposed.
   Daly, P. J.

The question to be determined on this motion is whether the Appellate Term of the Supreme Court can order restitution of moneys collected upon' a District Court, judgment which was reversed by the late Court of Common Pleas. “ When a final judgment or order is reversed or modified, upon appeal, the appellate court, or the General Term of the same court, as the case may be, may make or compel restitution of property, or of a right, lost by means óf the erroneous judgment or order.” Code, § 1323,

The motion for restitution “ may be made in the court that reverses the judgment, or it may be made at the General Term of the court to .which the case has been remitted and is pehding, if that court has a General Term. If not, the motion must be made in the court that reversed the judgment.” Carlson v. Winterson, 146 N. Y. 345. As the District Courts have no General Term the motion would necessarily have to be made in the Common Pleas, that being the-appellate court; but as that court was abolished by the Constitution from and after January 1, 1896, and 'all its powers and jurisdiction were vested in the Supreme Court, the latter, for the purposes of such a motion, must be deemed to be the appellate court under the foregoing section of the Code; and the motion must be made at the Appellate Term.

“ The Appellate Division shall have the jurisdiction now exercised * * * * by the General Terms of the Court of Common Pleas for the city and. county of Hew York, the Superior Court,” etc. Constitutition, art. 6, § 2. “The jurisdiction now exercised by the several courts hereby abolished shall be vested in the Supreme Court. Appeals from inferior and local courts now heard in the Court of Common Pleas for the city and county of Hew York, * * * shall be heard in the Supreme Court in such manner and by such justice or justices as the Appellate Divisions * * * shall direct.” Constitution, art, 6, § 5. The Appellate Term is constituted “for the hearing of appeals from the City Court and the District Courts of the city of Hew York.” Rules of the Appellate Division, First Department.

By force of the above constitutional provisions the Supreme Court undoubtedly succeeds to all the jurisdiction of the Court of Common Pleas; and the creation of an Appellate Term to hear the appeals heretofore taken to the Common Pleas seems by fair construction to transfer to the latter tribunal all power in respect to such appeals which might be exercised by the General Term of the Court of Common Pleas, if it were now in existence. The Appellate Term is now the appellate court of the district courts and the successor of the General Term. The Supreme Court as the successor of the Court of Common Pleas would undoubtedly have the right to entertain the motion for restitution and the exercise of the power is conferred by it upon the Appellate Term.

Respondent relies upon the case of Cushing v. Vanderbilt, 7 Daly, 512; but the refusal to order restitution in that case was based upon the want of power in the court at the time the motion was made, viz.: March, 1878, to order new trials in the District Court. It was suggested that the proper course for the appellant was to apply for a reargument of the appeal and obtain an order for restitution as part of the judgment of reversal. But that course is unnecessary now since the power to order a new trial was possessed and exercised by the Common Pleas when the reversal in this action was had and the new trial was ordered.

The remitting of the case to the District Court for a new trial does not deprive the court of jurisdiction to entertain a motion for restitution, that power being independently conferred by the Code (§ 1323).

Motion for restitution granted, with $10"costs.

McAdam and Bisghofp, JJ., concur.

Motion granted, with $10 costs.  