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MURRAY OIL PRODUCTS CO. v. ROYAL EXCHANGE ASSURANCE COMPANY (04/23/68)

April 23, 1968

MURRAY OIL PRODUCTS CO., INC.
v.
ROYAL EXCHANGE ASSURANCE COMPANY



Motion to resettle this court's order of July 11, 1967, is denied. On July 11, 1967 this court reversed the judgment in favor of plaintiff on the law and the facts (28 A.D.2d 839).

Concur -- Botein, P. J., Stevens, Capozzoli, Rabin and McNally, JJ.

In our opinion, in the light of the decision of the Court of Appeals (21 N.Y.2d 440), this court's reversal rests solely on the law. However, the Court of Appeals reversed the order of this court and granted a new trial. The Court of Appeals did not remit the case to this court. The mandate of the Court of Appeals precludes the present application of plaintiff to resettle the order of July 11, 1967 to delete the reversal on the facts. Plaintiff is required to apply to the Court of Appeals to amend the remittitur so as to enable this application. (See Litchfield Constr. Co. v. City of New York, 219 App. Div. 369.) The Court of Appeals may remit the case to this court for further proceedings in the light of its decision. (See Betzag v. Gulf Oil Corp., 298 N. Y. 358.)

19680423

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