Opinion
February 7, 1908.
Alfred B. Cruikshank, for the appellant.
Charles M. Demond, for the respondent.
This appeal is from an order denying appellant's motion for an extension of time to deliver a certain certificate of stock. The appeal was argued in connection with a motion to vacate a judgment between the same parties. ( Treadwell v. Clark, No. 1, 124 App. Div. 256.) The two appeals are practically identical and are based upon substantially the same facts, and for the reasons stated in the opinion delivered in the other appeal this order must be affirmed.
It is true on the motion which resulted in the order here appealed from an affidavit was presented by Clark to the effect that he acted upon the advice of counsel, who informed him that the certificate of stock and the bond could be delivered at any time within thirty days after the remittitur of the Court of Appeals had been filed in the Supreme Court. This advice, if given, was an erroneous view as to the law and is not a sufficient ground for relief. ( Weed v. Weed, 94 N.Y. 243; Jacobs v. Morange, 47 id. 57.) There is in this affidavit a statement to the effect that the certificate of stock is not worth $30,000 or anything near like that amount, and it would be unjust and inequitable to compel defendant to pay that sum. The trial court found that this was the value of the certificate at the time the trial took place. The plaintiff has been prevented since that time from either receiving the value or taking the certificate by reason of the defendant's appeals. Defendant having been the sole cause of the delay it would seem to be unjust and inequitable to the plaintiff to now compel him to take the certificate of stock, it having depreciated in value.
The order appealed from, therefore, is affirmed, with ten dollars costs and disbursements.
PATTERSON, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.