194 A.D. 954 | N.Y. App. Div. | 1920
When this court reversed the order of the Special Term "and granted plaintiff’s motion for judgment on the pleadings [See 192 App. Div. 153], it did not state that the reversal was “ without prejudice.” Plaintiff was entitled to have its judgment entered upon the Appellate Division’s decision in precise conformity therewith and the Special Term was without power to amend the judgment by directing a dismissal of the counterclaim ‘ ‘ without prejudice. ’ ’ The plaintiff’s motion to resettle the order of September 27, 1920, reciting that it was made upon motion of defendant’s attorneys should also have been granted. The order appealed from should be reversed, with ten dollars costs and disbursements and plaintiff’s motion to amend the judgment by the omission of the words “ without prejudice ” should be granted, with ten dollars costs. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. Order reversed, with ten dollars costs and disbursements, and motion to amend judgment by omitting the words “ without prejudice ” granted, with ten dollars costs,