
    Louise Carlson, Appellant, v. Maria L. Winterson, Respondent.
    (New York Common Pleas—General Term,
    April, 1894.)
    The granting of an order of restitution after reversal of a judgment is discretionary, and a denial of a motion therefor is a proper exercise of such discretion where the action has been retried and the same result reached as on the first trial.
    Motion for restitution upon reversal of a judgment for plaintiff. See 3 Mise. Rep. 63, 639.
    
      H. M. Hitchings, for appellant.
    
      F. F. Bullard, for respondent.
   Per Curiam.

The granting of this motion is discretionary, and the provisions of the Code of Oivil Procedure respecting restitution on the reversal or vacation of a judgment or order are not exclusive. The party has his remedy by action. Haebler v. Myers, 132 N. Y. 363; Baylies’ New Trials & App. 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.

Present: Daly, Ch. J., Bisohoff and Pryor, JL

Motion denied, without costs.  