Westervelt v. Shapiro

I have no doubt but that the Appellate Court has power to modify the order by imposing a different fine from that erroneously imposed by the court below, but ordinarily the function of determining the amount is best exercised by the court in which discretion is lodged in the first instance. In this case the amount of $510 was part of the fine actually imposed. The order of this court should have reversed the order of the court below, with costs and disbursements and remitted the proceeding to the court below for the imposition of such fine as lies within the discretion of the court below, unless the respondent stipulates to reduce the fine to the sum of $510. The order cannot, however, be modified by fixing a definite fine, and remitting the proceeding to the Special Term to fix an additional fine.

Motion to resettle in form proposed denied. All concur.