
    Louise Carlson, App’lt, v. Maria L. Winterson, Resp't.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 2, 1894.)
    
    1. Appeal—Restitution.
    The granting of a motion for restitution, upon reversal of a judgment for plaintiff is discretionary.
    2. Same—Action.
    The defendant has his remedy by action.
    Motion for restitution upon reversal of a judgment for plaintiff. See 3 Mise. R. pp. 63, 639; 51 St. Rep. 775; 52 id. 938.
    
      H. M. Hitchings, for app’lt; K F. Bulland, for resp’t.
   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 not exclusive. The party has his remedy by action. Haebler et al. v. Myers, 132 N. Y. 363; 44 St. Rep. 403 ; Baylies on New Trials and Appeals, 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.  