Greiss v. Feldman

In an action brought in the Supreme Court, Nassau County, wherein plaintiff had been awarded summary judgment on his second cause of action sounding in conversion, plaintiff appeals from an order of the Supreme Court, Westchester County, entered August 21,1962, granting defendant’s motion to vacate an ex parte order of said court, dated June 14, 1962, which had directed the issuance of an execution against .the person of the defendant. Order affirmed, without costs. Plaintiff’s motion for summary judgment, made at Special Term in Nassau County, had also requested a body execution against the defendant’s person. The decision of such Special Term, while granting summary judgment, denied plaintiff’s request for a body execution on the ground that such relief “may only be granted after an actual trial (§§ 764, 826[7], Civil Practice Act; Macedonia v. Fontanelli, 12 Misc 2d 1082).” A decretal paragraph in the order entered on the decision denied plaintiff’s application for a body execution. In our opinion, that decretal paragraph constitutes the law of the ease unless and until the order, on appropriate motion, be resettled or modified with respect to the body execution. Under the circumstances, a Justice of co-ordinate jurisdiction, sitting in Westchester County, was without power to change the order or to make a contrary direction. Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.