200 N.E. 784 | NY | 1936
In this proceeding we reversed (
Some of the parties who were unsuccessful at the Appellate Division appealed to this court. Others of that group refrained from taking an appeal. The executors and trustees who had been successful in the Surrogate's Court and at the Appellate Division and some of the other parties in like position move to amend the remittitur by modifying the decree so as to award distributive shares only to those parties who appealed to this court and by affirming as to all other distributees who did not appeal. They rely principally upon St. John v. Andrews Institute (
In the prevailing opinion in the St. John case occurs the statement (p. 389): "The great stumbling block in this case seems to be the apparent, if not real, incongruity of the result arrived at; that is to say, that a distribution will be made in favor of four of a certain class of defendants, *198
which is denied to two others of the class, whose rights are exactly the same." In Croker v. Williamson (
The distributees whom the moving parties seek to exclude from the benefits of our decision are Marie Winburn, the widow; John Winburn, a half nephew; Eva Clayburgh, a half niece; Phoebe Cohen, a niece, and the Estate of Hattie Weinberg, a niece, all of whom had appealed to the Appellate Division but did not appeal to this court, and Abraham Wineburgh, a brother, who took no appeal to either court. Of these parties, according to the affidavit in support of this motion, Marie Winburn, John Winburn and Eva Clayburgh, although denominated as respondents, filed briefs in this court arguing for reversal. They did not acquiesce in the decisions of the Surrogate and the Appellate Division. All had appeared as parties in the proceeding in the Surrogate's Court, and, pursuant to section 289 of the Surrogate's Court Act, must be deemed parties to the appeal and, within the meaning of section 193, subdivision 1, of the Civil Practice Act, parties before this court. Section 584 of the Civil Practice Act, as amended by Laws of 1926, chapter 215, provides: "Judgment or order on appeal. Upon an appeal from a judgment or an order,any appellate court to which the appeal is taken, which is authorized to review such judgment or order, may reverse or affirm, wholly or in part, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate or other order which it is authorized to review, and *200 as to any or all of the parties. It shall thereupon render judgment of affirmance, judgment of reversal and final judgmentupon the right of any or all of the parties, or judgment of modification thereon, according to law, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing." This amendment took effect two years subsequent to the decision in the Horner case and confers upon this court the same power formerly residing only in the Appellate Division and Appellate Term. It appears that all these parties to the proceeding in the Surrogate's Court are parties to the appeal and parties before this court and that it was our duty to render judgment upon their rights as we have rendered it. The motions to amend the remittitur should, therefore, be denied.
The attorneys for some of the parties who were successful in this court make a cross-motion to amend the remittitur, but this motion is made only in the event that the other motion is granted. This cross-motion should, therefore, be denied.
The motions to amend the remittitur should be denied.
CRANE, Ch. J., LEHMAN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur.
Motions denied. *201