
    Ellen T. Hayes, Pl’ff. v. Charles J. Nourse, Jr., as Assignee, etc., Def’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    Appeal—Restitution on bevebsal.
    Plaintiff recovered judgment for money paid on a contract for the purchase of land and the same was affirmed at general term. Defendant paid the judgment. The court of appeals reversed said judgment. Held, that, as tile latter court determined in defendant’s favor the only issue involved, restitution of the sums paid by defendant would be ordered.
    Motion for restitution.
    
      G. W. Wiclcersham, for the motion; W. B. Putney, opposed.
   Larremore, Ch. J.

This is a motion for restitution under § 1323 of the Code. The plaintiff purchased certain real estate, formerly belonging to defendant’s assignors, at the assignee’s auction sale, and, under the terms of sale, paid ten per cent, of the amount of her bid to bind the bargain. She subsequently rejected the title and brought the present action to recover the amount of her deposit. She obtained a judgment in her favor at special and gerieral terms of this court. The defendant thereupon, for reasons which seem perfectly proper, and of which the court of last resort has approved, 107 N. Y., 577; 12 N. Y. State Rep., 476, paid the amount of said judgments and satisfied the same. Upon appeal to the court of appeals said judgments in plaintiff’s favor were reversed, and defendant now demands restitution of the amount so paid.

The phraseology of § 1323 of the Code makes the right to a Testitution discretionary with the court in all cases. Counsel for defendant cites adjudications in which the property in dispute had originally belonged to the defendant. Sucha case was Costar v. Peters, 4 Abb. Pr., N. S., 53, which was an action for ejectment,- and in which the plaintiff, by execution, had been placed in possession of the premises sued for. Similar in effect was Murray v. Berdell, 98 N. Y., 480, in which the property of defendant had been sold under execution to discharge a debt alleged to be due the plaintiff.

We do not consider these cases analogous in principle to the case at bar, because here the money deposited was originally plaintiff’s money, and therefore does not stand for property of which in the first instance defendant had been deprived. If there appeared any feasible chance of plaintiff’s obtaining a different result on the new trial which the court of appeals has ordered, we should be inclined to deny the present motion. Defendant elected to satisfy the judgments, which was equivalent to returning to plaintiff her deposit, to be kept in her custody, pendente lite. If, therefore, there remained any actual uncertainty as to the ultimate right to such money, it would be more equitable not to interfere with its present custody, but to hold defendant to his election until final judgment and final affirmance on appeal. But inspection of-the pleadings shows that the court of appeals has passed upon and authoritatively decided the only question raised. The new objection which counsel for plaintiff seeks to interject upon this motion could not be urged upon a new trial, without an amendment of the complaint amounting to a substantial change of base. We are not called upon here to say whether a motion for such amendment could under any circumstance prevail, and certainly we are not, when the present application is addressed to our discretion, bound to consider what plaintiff’s possible status might be if a motion for a radical amendment had been made and granted. Upon the cage as it stands, the court of last resort has finally determined in defendant’s favor the only issue involved, and therefore, in the exercise of our discretion, it is just that the order of restitution should be made.

The motion should be granted.

Daly and Van Hoesen, JJ., concur.  