259 A.D. 577 | N.Y. App. Div. | 1940
An action based on fraud, brought by Louis Davis against Milton J. and Claudia S. Ross, was reached for trial on April 18, 1932. Defendants’ counsel sought an adjournment, which was denied. An inquest was then had. Plaintiff waived
Later Davis ascertained that Mrs. Ross, when she died, had an interest in her father’s estate, and that without administration in the State of New York about $36,000 had been paid therefrom to Fred Ross, to Ruth W. Ross, a second wife and assignee of Milton J. Ross, and to Alexander Slater. Davis then moved as a judgment creditor in the Surrogate’s Court of New York County for appointment as administrator of the estate of Claudia S. Ross, deceased. He did so on notice to the son and husband of decedent. They contested the application on the ground that plaintiff’s judgment was void. The court granted administration to Davis.
On January 30, 1937, Davis, individually and as administrator of the estate of Claudia S. Ross, brought this action to reach the payment to the defendants from the estate of Mrs. Ross’ father and to apply the same as an asset of the estate of Mrs. Ross to the satisfaction of plaintiff’s judgment. He set out five causes of action in the complaint; two as administrator and three individually. After joinder of issue the appealing defendants appeared at the trial. They moved to dismiss the complaint, on the ground, inter alia, that the judgment was void. To meet other objections advanced, plaintiff moved to amend his complaint. Instead of acting upon these motions the trial court referred the parties to Special Term. The plaintiff then made a motion for leave to amend his complaint and the defendants made cross-motions for summary judgment. The Special Term denied the motion to amend the complaint and granted defendants’ motions for summary judgment. From the orders and judgments entered pursuant thereto plaintiff appeals.
The basic question here involves the validity of the default judgment. Defendants assert that when the inquest was had there was no “ verdict, report or decision ” obtained by plaintiff before the defendant Claudia S. Ross committed suicide, and hence a valid judgment could not be entered under section 478 of the Civil Practice Act. They predicate this contention on the
When defendants Ross defaulted on the trial, they waived a jury trial. (Civ. Prac. Act, § 426, subd. 1.) When plaintiff in open court waived a jury trial and moved for a direction of a verdict as if a jury were present, his waiver was effectual. (Civ. Prac. Act, § 426, subd. 3.) At that stage only plaintiff had a right to be heard on the inquest as to whether there should be a jury trial or a decision. In the absence of interdiction by constitutional provision, statute or rule, parties may make their own practice. (Matter of Malloy, 278 N. Y. 429, 433; Crouse v. McVickar, 207 id. 213, 218; Matter of N. Y., L. & W. R. R. Co., 98 id. 447, 453.) There is no such restriction respecting a law action in the event of a default on a trial. Such prohibitions as there are relate to matrimonial actions. Parties may have a direction of a verdict with the same force and effect as if a jury were physically present. (Franklin Sugar Refining Co. v. Lipowicz, 220 App. Div. 160; affd., 247 N. Y. 465; Glanzer v. Shepard, 233 id. 236, 242; Adams v. Roscoe Lumber Co., 159 id. 176, 180.) The validity of a default judgment in a tort action has been sustained where, on the inquest, no jury was present and no decision was made because it was waived, there being merely a directed judgment by the court. (Jensen v. Union Railway Co., 237 App. Div. 655; certiorari denied, 289 U. S. 761.)
The recital in the judgment established prima fade what occurred on the inquest (O’Connor v. Huggins, 113 N. Y. 511; Maples v. Mackey, 89 id. 146) — that a jury and a decision were both waived and that a verdict was directed. There is no showing to the contrary; the extract from the clerk’s minutes is not inconsistent with the recital in the judgment. A decision is not necessary in this
These views make it unnecessary to determine whether the decree of the Surrogate’s Court in a proceeding in rem for the appointment of an administrator of the estate of the deceased, where the validity of the judgment was contested, was conclusive and not subject to collateral attack.
The questions raised as to the sufficiency of the complaint may be decided summarily. The first two causes of action brought by plaintiff as administrator are sufficient; certainly in the form proffered on the motion to amend the complaint. That motion should have been granted on the trial since there was no plea of surprise interposed by the defendants. Plaintiff should, therefore, be permitted to amend his complaint as of course, the rule applicable being that of utmost liberality.
The third cause of action brought by plaintiff individually and claimed to be predicated on section 170 of the Decedent Estate Law, is insufficient as against the defendants Ruth W. Ross and Alexander Slater. They are not next of kin of the decedent — hence the facts in this count may not be invoked against them under that statute.
The fourth cause of action brought by plaintiff individually and claimed to be based on section 19 of the Personal Property Law, is insufficient as to all the defendants because the latter part of that section may be invoked only by a creditor in a representative capacity. It may be amended, if plaintiff be so advised, in the amended complaint now permitted to be served, although the relief sought thereunder may be redundant in view of the other causes of action, if the proof warrants any relief.
The fifth cause of action founded on a valid judgment is sufficient on its face.
The orders granting defendants’ motions to dismiss the complaint and for summary judgment and the judgments entered thereon should be reversed on the law and the facts, with ten dollars costs and disbursements against respondents Ross, and also against respondent Slater, and the motions should be denied, with ten dollars costs against respondents Ross, and also against respondent Slater.
The order denying plaintiff’s motion for leave to amend the complaint should be reversed on the law and the facts, with ten
The appeal from the order denying plaintiffs motion for a review of the taxation of costs should be dismissed as academic, without costs.
Lazansky, P. J., Johnston, Adel and Close, JJ., concur. Judgment, etc., accordingly.