Roxanna H. Lawrence, as Executrix, etc., et al., Respondents, v. Henrietta Church, as Executrix, etc., Appellant

Roxanna H. Lawrence, as Executrix, etc., et al., Respondents, v. Henrietta Church, as Executrix, etc., Appellant. (Argued November 30, 1891; decided December 8, 1891.) Motion to correct remittitur. The case is reported in 128 N. Y. 324. The following is the opinion in full: “ In this case, if the question Rad been presented to us of striking out all other items of recovery and simply retaining the judgment for the $3,000, with interest from the commencement of this action, we think we should have made such an order. The plaintiffs’ -willingness to so consent was not presented, and had not occurred to us. The record shows no error regarding the $3,000 item, excepting the allowance of interest from the time of the execution of the contract. A plain case for recovery of the principal sum was proved. There was, however, no demand for its payment prior to the commencement of this action proved, and we thought that the plaintiff might very probably be able to prove it, and such demand would permit interest to run on the principal from the time it was made. We assumed the plaintiff would also desire to prove her other demands. She, however, thinks proper to remit all interest, except from the time of the commencement of the action, and to remit all right to recover any other item which entered into the original judgment. We think she should be permitted to do this. “ The statement as to the insolvency of the estate of the defendant’s testator certainly strengthens the reason for granting the amendment. -The defense has been heard as to the $3,000 item, and no valid answer to the claim was shown. If there be a question as to the solvency of the estate, the plaintiff should have the benefit of the judgment she obtained,, modified as provided. Upon all the facts, it is clear that justice will be promoted by granting this motion.” J. H. Stevens for motion. [MAJORITY — Peckham, J.,] Peckham, J., reads for granting motion. All concur. Ordered, that the Supreme Court be requested to return the remittitur herein to the court, and when so returned, it is further ordered, that the remittitur be amended by providing that the judgments of the General and Special Terms- be reversed and a new trial ordered, unless the plaintiff stipulates and consents that the original judgment against the defendant be modified by deducting therefrom all sums excepting the amount of $3,000, with interest thereon from the commencement of this action, and in case the plaintiff • so consents, then the judgment, as modified, is affirmed, without costs to the plaintiff in any court.