95 N.Y.S. 631 | N.Y. App. Div. | 1905
This appeal is from a final judgment. The case was before us on appeal from the interlocutory judgment (83 App. Div. 276) and it is necessary here to state only such facts as bear upon the points now raised. After the affirmance of the interlocutory judgment by this court and its refusal to permit an appeal to the Court of
The appellant objected to the confirmation of the referee’s report and to the entry of final judgment:
■ First. Upon the- ground that the representatives of George Par- ■ bury Pollen Schmidt and John William Schmidt, two of her children who had died without issue prior to the commencement of the action, were not made parties, .and insisted that no determination could be ■ had without their presence. The court overruled the objection and denied the motion to add them as parties defendant, and we' think properly. In an action brought by the executors of the will of George Parbury Pollen Schmidt in 1879 for a construction of that instrument these deceased children of the appellant were made parties, and in the judgment rendered therein it was determined that, on the death of the two daughters of the testator —* one of whom is this appellant — the fund set apart for her use should go- to her legal issue living at the timé of her decease. This judgment, so construing the provisions of the wilf and determining the lights ’ of the several legatees is binding upon the parties and a conclusive answer to the claim that representatives of children of the. appellant, who had predeceased her without issue, should be made parties.. There' is also an additional answer, to the appellant’s' contention in this respect, and that is that in the .complaint in this action, which omit* ted as parties the representatives of the deceased children of appellant, an allegation was inserted that ■“•all persons having any vested or contingent interest'in the principal or income of said trust fund are .parties to this action.” The appellant by her answer expressly admitted this allegation and she did not set up any defense of defect of parties defendant. She is, therefore, not in a position to claim that the representatives named should have been made parties. Besides, the action was not brought to determine the ultimate rights of the various parties to .the trust fund left by the testator, but rather to establish the fact that the fund constituted a trust and for án .accounting of the moneys in the hands of the appellant as administratrix with the will annexed and for the appointment of a trustee. ■ ’ - .
Third. The application for final judgment was submitted to the court on the 12th of January, 1904, and decision was not filed until January 14, 1905. In the meantime a son was born to- the defendant Fritz Leopold Schmidt, Jr., who is known in the record as Parbury Pollen Schmidt. To avoid any embarrassment by reason of the birth of this child, occurring during the necessary consideration of the case by the court, the final judgment was directed to be entered nunc fro tunc as of the date of the submission of the ease. It is urged that the court had no power to do this. We think it had. The power of courts, whether of law or equity, to make entries of judgménts or decrees nunc fro tunc in proper cases and in furtherance of the interests of justice, is one which has been recognized and exercised for a long time as a part of their jurisdiction. The exercise of this power is to prevent any event happening while the case is in the hands of the court which would otherwise deprive the successful party, of his judgment. (Black Judg. §§ 126, 127; Mitchell v. Overman, 103 U. S. 62, and authorities cited in the note.) This newly-born child was a brother of the infant in whose favor the complaint on the interlocutory judgment was dis-. missed and stands in like relation to her. But even if the father of the newly-born child —the defendant Fritz Leopold Schmidt, Jr.— was not the only necessary party and if it were proper or even nee-, essary that his children should also be made parties, the court had the power to direct the entry of the judgment nv/nc fro tunc as it
Fourth.. After the argument of the motion for final judgment and for confirmation of the referee’s report, a reargument' was ordered for a time in the following January. The justice before whom the original motion was made, and who- ordered the reargument,. had been re-elected and his prior term of office expired and his new term began on the first day of January, intermediate the order for reargument and the hearing. Objection was made that the proceeding could not be continued before him because his term of office had expired. This was overruled and, we think, properly. The motion was made to the court and the reargument directed to another court. Both Special Terms were held by the same justice, and the fact that his old term of office had expired and the new term immediately begun did not deprive him of the power to hold the court or entertain the motion.
In Kelly v. Christal (16 Hun, 242) it was held that where the term of a justice of the Supreme Court expired during a trial and he immediately entered upon a new term, under a re-election, he had jurisdiction to conclude the trial and decide the case.
Finally it is claimed that the final judgment is erroneous because it provides that the appellant shall turn over the accretions of the trust fund to the trustee appointed. The interlocutory judgment , provided that the trustee therein appointed should take the fund,. together with all accretions. On appeal the court affirmed such judgment, modifying it only to the extent of striking out the name of the trustee and holding that the trust vested in the Supreme Court and appointing the same trustee as a representative of the court to carry out its provisions.
We are not, therefore, disposed to review our' former decision affirming the interlocutory judgment.
The judgment and orders appealed- from should be affirmed, with costs to the respondents against the appellant personally. _ .
O’Brién, P. J., Patterson, Ingraham and Clarke, JJ., concurred..
Judgment and orders affirmed, with costs to respondents against the appellant personally. <