
    Louisa Carlson, Appellant, v. Maria L. Winterson, Respondent.
    (New York Common Pleas—General Term,
    February, 1894.)
    Where a judgment is reversed by the Court of Common Pleas on appeal from the City Court, the latter court has no jurisdiction to grant an order for restitution under section 1323 of the Code.
    Where the judgment of reversal is not final, but directs a new trial for reasons which do not prevent the respondent from further maintaining the action, an order of restitution should not be granted.
    Appeal from an order of the General Term of the City Oousrt.
    
      Hector M. Hitchvngs, for appellant.
    
      Edwm B. Bullard, for respondent.
   Bookstaver, J.

Judgment was recovered upon the trial of this action in the City Court and affirmed upon an appeal to the General Term of that court. On appeal to this court that judgment was reversed for an error of law, and a new trial was directed. Nothing was said in that decision as to restitution. Pending these appeals, the defendant having given no security, execution was issued upon the City Court judgment and satisfied by sheriff’s sale of certain real property of the defendant. The order herein appealed from set aside and vacated this sale and restrained the sheriff from executing a deed in pursuance thereof. The law of this state makes ample provision for restitution in case any property has been wrongfully obtained by reason of an erroneous judgment or order of the court. By the common law a promise is implied to repay moneys received upon such judgment or order, which may be recovered by action in all cases, by proceedings as for contempt where the parties are before the court or where the person proceeded against is an officer .of the court, by execution in appropriate cases, and in certain other contingencies provided for in the Code. But the suitor seeking redress under the provisions of the Code must make an intelligent choice of the remedies applicable to the facts of his case. The notice of motion, the fact that it was made to the General Term of the City Court, and the order granted, show that this application was under section 1323 of the Code of Civil Procedure, which provides: “ When a final judgment or order is reversed or modified upon appeal, the appellate court1 or the General Term of the same court, as the case may be, may make or compel restitution. * * * ” That this confers the power of restitution upon the court which modifies or reverses a judgment or order is clear without the authority of Market Nat. Bank v. Pacific Nat. Bank, 102 N. Y. 464. If there were any doubt about it that case is conclusive upon the point. . In speaking of section 1292, which reads “where a judgment is set aside for any cause, upon motion, the court may direct and enforce restitution in like manner, with like efiect and subject to the same conditions as where a judgment is reversed,” the court said: “ The court meant in this section is the court which set aside the judgment,” Section 1292 is less completely expressed than section 1323, to which it refers and on which it depends. It is proper, therefore, to regard the decision just quoted from as equally applicable to either. We, therefore, think the Oity Court had no jurisdiction to grant the order upon the application made to it under the facts in this case.

If it were otherwise, we think the court below should not have made the order it did at the time it did. Section 1323, just cited in part, says, “ the court may make or compel restitution.” It will be observed that the word “ may ” is used instead of “ shall,” thus making the order appeal to the sound discretion of the court as to whether it ought to be granted or not. The provisions of this section are similar to those of section 369 of the old Code, where the word “ shall ” instead of may ” is used. But even under that section the Court of Appeals expressed great doubt whether restitution was a matter of strict right and would in all cases be ordered where the judgment of reversal was not final but directed a new trial, and for reasons which did not prevent the respondent from further maintaining the action. Marvin v. Brewster Iron Mining Co., 56 N. Y. 671. The reasoning of the court in that case is especially applicable to the one under consideration. We did not reverse the judgment upon its merits, but upon a question of law which did not by any means preclude a recovery in the action, and, until that action"is tried, we think, under the circumstances of this case, the order should not have been granted. Besides, there is not a little reason for belief that the order affected the title of a purchaser in good faith and for value, in which case section 1323 prohibits restitution, but it is not now necessary to determine that question.

The order appealed from should, therefore, be reversed, with costs.

Bischoff and Pryor, JJ., concur.

Order reversed, with costs.  