Davis v. Fogarty

120 N.Y.S. 39 | N.Y. App. Div. | 1909

Scott, J.:

The plaintiff appeals from an order resettling an order appointing a receiver. The order which was originally entered granted all that plaintiff moved for. As the order was resettled there was excluded from the operation of the receivership one parcel of real estate. The order thus becomes less favorable to plaintiff than she asked, and she desires to appeal therefrom. She finds herself embarrassed, however, by the fact that the order as resettled recites that it was made “upon motion of Johnston & Johnston, attorneys for the plaintiff.” In its present form the order certainly is not what plaintiff asked for, and she should not be subjected to possible embarrassment upon appeal by the erroneous recital that an order which she opposed was entered upon her motion. Upon a similar question this court said: “ A party intending to appeal from an order or a part thereof, which he claims is in violation of his rights, should not be compelled to run the hazard upon an appeal of having the point made against him that his appeal will not lie because the order below was granted upon his request. If the recital in the order states that the order was made upon his motion he does run that hazard.” (Raymond v. Tiffany, 115 App. Div. 350.) We are not to be understood as holding that such a recital will always be held to be conclusive upon an appellant, if it appears otherwise from the record that the order as made was not of his asking, but contrary thereto. The recital, however, is a circumstance to be considered and in certain cases may prove to be conclusive. It is seldom and perhaps never necessary or appropriate to recite in an order or judgment .that it was entered “upon motion” of an attorney, although it should show who moved for the order or judgment and what he asked for. The order or judgment granted is the act of the court. If it grants all the relief that the moving party asked for it can do no harm, although it is unnecessary, to recite that the order was entered on his motion. If it grants less the party who movéd may appeal, and the order, not conforming to his motion, should not be so drawn as to appear to have been asked for by him or to be satisfactory.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to resettle granted to the extent of striking out the recital that it was made “ upon motion” of Johnston & Johnston, attorneys for the plaintiff.

Ingraham, Laughlin, Olabke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion. Settle order on notice.