Guilfoyle v. Pierce

40 N.Y.S. 993 | N.Y. App. Div. | 1896

Lead Opinion

Williams, J.:

The part of the order appealed from should be reversed and an order made directing the receiver to convey the property to the *3transferee of the defendant. It was a proper order to make in the case unless somebody having an adverse interest jshould make an objection. The respondent had no interest to make any such objection. He had no interest whatever in the property. The plaintiff’s wife was not a party to the action, and had no right to object to the order. The order could not, in any event, have injured her, because , she is fully protected by the Us pendens tiled by her in the action brought by "her against the receiver.

The order should, therefore, be modified by striking out the provision denying this part of the motion, and by inserting a direction to the receiver to make a conveyance to Frances H. Pierce, the defendant’s grantee. The appellant should have costs of the appeal.

Rumsey and O’Brien, JJ., concurred; Van Brunt, P. J., dissented.





Dissenting Opinion

Van Brunt, P. J. (dissenting):

I dissent from the opinion of Hr. Justice Williams. I do not think there was any power in the court to amend the decree entered by another judge in a substantial particular. It might have been proper practice to have applied at the foot of the decree for a further and different direction, but there was no power in the court to amend the decree.

I further dissent upon the ground that the application was entirely unnecessary. If the defendant in this action desired that this property should he conveyed to some other person after it had been conveyed to her by the receiver, she might have made the conveyance herself. It was, therefore, entirely unnecessary that the court should be called upon to examine this application for the purpose of determining as to whether it was proper, upon this record, to make the order in question.

The order should be affirmed.

Order modified and order entered as directed in opinion, with ten dollars costs and disbursements to the appellant.