
    Aaron B. Marvin, Appellant, v. The Brewster Iron Mining Company, Respondent.
    (Argued April 28, 1874;
    decided May 26, 1874.)
    Although the language of section 369 of the Code requiring an appellate court to order restitution of moneys.paid or collected on a judgment upon a reversal of the judgment is imperative, yet, whether restitution, as a matter of strict right, will, in all cases, be ordered where the judgment of reversal is not final, but directs a new trial, and for reasons which do not preclude the respondent from further maintaining the action, guere.
    
    
      It seems that the Supreme Court has power, on motion for restitution, where the judgment of reversal grants a new trial, in order to guard the respondent from loss on account of the insolvency of the appellant, to make such order as it shall deem proper for the withholding and for the disposition anc( safe keeping of the moneys collected, pending the litigation.
    This was a motion, on the part of the plaintiff, for a reargument or modification of the judgment of this court herein. (Reported 55 N. Y., 538.)
    The motion was made upon the ground that, inasmuch as the judgment determined that the defendant had no right to use plaintiff’s lands for storage of ore and deposits of refuse, and as the amount of damages awarded by the Special Term for such use was about equal to the sum plaintiff had collected on execution upon the judgment reversed, plaintiff should be allowed to retain the moneys thus collected. Held, that the principle decided by this court was that defendant had the right to such use of the surface-lands, and no more than was necessary for the profitable enjoyment of its subjacent property; and, although it did not appear from the appeal papers that it was imperatively necessary that defendant should make any such use of defendant’s lands, yet as it was evident that the action was not tried or disposed of upon that principle, and there were no findings of fact as to which of the acts of the defendant were and which were not thus necessary, this court did not intend to pass finally upon that question; and, as the court concluded to send back the whole case for new trial, it did not at all consider the question of damages; and as it did not appear and could not be said that, upon a trial had with clear reference to the principles enunciated, a new or variant state of facts might not be presented, not only as to the amount but as to the existence of the right to damages, the motion was denied.
    The court further state that, as the motion is practically in anticipation of a motion or proceeding upon the part of the defendant for restitution, the more fit tribunal for the disposition of that matter is, in the court below; although this court, under sections 330 and 369 of the Code, may have power to dispose of the matter.
    As to whether this court, upon direct application, would, under said sections, be required to award restitution, quere.
    
    But, held, that the Supreme Court, in its discretion, had the power, in case of the insolvency of appellant or its pecuniary inability to pay the judgment in case the respondent should be successful upon the new trial, to withhold the moneys collected to await the final determination of the action, and to make such order for their disposition and safe keeping meanwhile as it deems proper. The court citing the following authorities: For the rights at common law to withhold restitution, Fita Alden v. Lee (2 Dal., 205); S. 0., sub nom. Fita Adin v. Lee (1 Teates, 160 and 207); Kirk v. Eaton (10 S. & R., 103,107,108). Under the Code, Estas v. Bald/wi/n (9 How., 80); Britton v. Phillips (24 id., Ill, 115, 118); Younq v. Brush (18 Abb., 179).
    
      C. Frost for motion.
    
      John E. Parsons opposed.
   Folger, J.,

reads opinion for denial of motion, without cost, and without prejudice to plaintiff in any proceedings in the court below.

All concur.

Motion denied.  