McCullough v. Lehigh Valley Railroad

Order made and entered on September 28, 1927, denying appellant’s motion to resettle the order made and entered on July 15, 1927, granting petitioner’s motion‘to ascertain and enforce his hen, and the order made on July 15, 1927, and entered on July 16, 1927, resettling the said first mentioned order of July 15, 1927, reversed upon the law and the facts, with ten dollars costs and disbursements, and the motion to resettle the orders of July 15 and July 16, 1927, by striking therefrom the recitals “ and the proofs of the parties with respect of the issues raised by said answer having been taken,” and “ the court having rendered its decision,” granted, with ten dollars costs. Orders of July 15, 1927, as resettled, and the order of July 13, 1927, reversed upon the law and the facts, with ten dollars costs and disbursements, and the matter remitted to the Special Term to take proof of the issues raised by the answer, or to refer the matter to an official referee to take proof and report to the court with his opinion. We are of opinion that by its answer the appellant raised issues which *824should not have been summarily disposed of upon the hearing of the motion. We are further of opinion that, under the respondent’s retainer, his recovery in any event is limited to two hundred and fifty dollars. Lazansky, P. J., Rich, Young and Hagarty, JJ., concur; Carswell, J., dissents and votes to affirm upon the ground that five hundred dollars was properly allowed. Settle order on notice.