#### Geo. W. Coster, plaintiff, *vs.*John R. Peters, defendant.

1. Section 330 of the Code of Procedure, which provides that when a judgment is reversed or modified, the appellate court *"may"*make complete restitution of all property and rights lost by the erroneous judgment, is not imperative, but leaves the matter open for the exercise of discretion by the court.

2. As there is, possibly, no ground for exercising discretion where a judgment of reversal is absolute, and no new rights have been acquired, in such a a case restitution will be ordered as a matter of course; but if rights have been acquired by a purchaser *pendente lite,*it will be without prejudice to his right to set up any defense he may have to a writ of assistance, or any other mode adopted for his removal.

(Before Robertson, Ch. J., and Monell and McCunn, JJ.)

Heard December 14, 1867;

decided April —, 1868.

Motion to amend an order reversing a judgment.

*387
      *E. P. Wheeler,*for the plaintiff,

*J. H. Qhoate,*for the defendant.

*Ira D. Warren,*for B. F. Beekman.

*By the Court,*Robertson, Ch. J.

This is an application for an amendment of the judgment of reversal in this case, by adding thereto an award of restitution to the defendant of the premises which are the subject of controversy in it, and of which the plaintiff obtained possession under an execution on the reversed judgment. The 330th section of the Code of Procedure is not imperative, the word used being “ may,” not “ shall,” and leaves the matter open for the exercise of discretion by the court. As there is possibly no ground for exercising discretion where a judgment of reversal is absolute and no new. rights have been acquired, in such case restitution will be ordered, as a matter of course. *(Estus*v. *Baldwin,*9 *How. Pr.*80, *per Welles, J.)*It does not seem to be settled that merely because a judgment of reversal embraces an order for a new trial, restitution will be refused. *(Britton*v. *Philips,*24 *id.*111,) As such judgment replaces the action in the condition it was in before trial, it would seem that an appellant ought not to lose the rights of which he has been deprived by an erroneous judgment. He .loses possession of the subject matter of the action during the appeal, where he has not obtained a stay of proceedings, which ought to be sufficient punishment or calamity for his fault or misfortune in not giving security and obtaining a stay, "Where the right's of third parties have intervened, who have been misled by the appearance of things, which has been the result of such omission to procure a stay, the court ought not to permit them to be prejudiced by an order for restitution, any more than on a sale of *388land to a third person on execution upon a judgment which is afterwards reversed. Of course there is no room for a defendant to file a notice of *lis pendens*when he seeks no affirmative relief. His present right of restitution arises from something occurring after the commencement of the action.

An affidavit of a purchaser of the premises Nos. 537, 539 and 541 Broadway, (B. F. Beekman,) read upon the motion, which he opposed, shows that he is now in possession of such premises by his tenants, but says nothing of the vault in Mercer street in front of them, which is the subject of controversy. He does not deny therein actual notice of this action, or claim to be a *bona fide*purchaser of the premises and vault. An affidavit of the attorney for the plaintiff shows that simply after the latter was put in possession of such vault, under the judgment reversed in this case, he conveyed the adjacent premises to a purchaser; but described them as hounded westerly *“ by the easterly side of Mercer*street,” which would exclude such vault. Of which, however, such purchaser forthwith entered into the possession, and he and his grantees have so remained therein until the present time, and the plaintiff' has never since been in possession of it. Such abandonment of the possession might relieve the plaintiff from all necessity of surrendering it, hut could not affect the defendant’s right to enter into it. The affidavit of the present owner (Beekman) is not sufficient to show that he ought not to be left to his remedy, if entitled to any, by an original application to the court, showing his good faith and want of notice, in order to prevent his removal and that of his tenants. The judgment of reversal, therefore, heretofore entered may he amended by adding thereto an order restoring the defendant to all things which he has lost, by means or in consequence of the judgment reversed, as against the plaintiff and those claiming nnder him.