Opinion
June 7, 1929.
Appeal from Supreme Court of Kings County.
Harry L. Kreeger [ Maxwell Slade and Charles Eno with him on the brief], for the appellant.
Meier Steinbrink [ Harold M. Kennedy with him on the brief], for the respondent.
The order of the Court of Appeals amending its remittitur affirmed the order and judgment of this court, and directed judgment absolute "denying to the appellant an award of damages." We are of the opinion that the judgment which we directed ( 223 App. Div. 768), which allowed plaintiff to stipulate the restoration of the fence in which event the plaintiff was permitted to exercise such rights in the defendant's tract as all other owners of property therein, or, in the absence of such a stipulation, restraining the defendant from interfering with plaintiff's use of the streets to the same extent and in the same manner as other owners of property in said tract, was preserved by the Court of Appeals ( 249 N.Y. 52, 59; Id. 417). The judgment which this appeal seeks to amend directs a dismissal of the complaint. The proposed amended judgment eliminates that provision, the result of which would continue in force our judgment which the Court of Appeals affirmed and limit the operation of the judgment absolute to a denial of any award of damages. We think that was the purpose of the amended remittitur. Speaking of our judgment, the Court of Appeals (249 N Y at p. 59) said: "We think that the plaintiff will be protected by the judgment in all the rights to which it is entitled and that the judgment was eminently proper." The order denying plaintiff's motion to further amend the judgment in the form proposed should be reversed upon the law, with ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs.
LAZANSKY, P.J., RICH, YOUNG, KAPPER and SEEGER, JJ., concur.
Order denying motion to further amend judgment reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Settle order on notice.