33 A.D. 609 | N.Y. App. Div. | 1898
The moving papers show that one Margaret Walsh was a creditor of Catharine Shields, deceased, in the sum of $4.00 and upwards. . The real estate of Catharine Shields became'the subject of an action of partition, to which Sarah Cunningham, the appellant, was a party. Said action proceeded in the usual form, and an interlocutory judgment therein was entered, directing the sale of the premises, which were subsequently sold by a referee. Upon the coming in of the report of the referee appointed under the interlocutory judgment, the
We are unable to see how the order, in any view, can be sustained. The judgment still stands as a valid adjudication and has not been disturbed in its force or efficacy since it was rendered; it is conclusive upon all parties and fixed their rights. (Jordan v. Van Epps, 85 N. Y. 427.) The effect of this order is to disregard the provisions of the judgment, and, although the same was not modified or attempted to be, an entirely different direction has been given, which is in direct conflict'with the terms of the decree. Judgments may not be so disregarded. The order does not in terms amend the judgment, and, if it did, it would be beyond the power of the court. so to do. (Heath v. N. Y. Building Laon Banking Co., 146 N . Y. 260.) The effect of such amendment is to change the whole character of the judgment which has been entered.. At most the ; court would only possess the power to grant a new trial in that
It follows that the order should be reversed.
All concurred.
Order reversed, with ten dollars costs and disbursements.