51 N.Y.S. 138 | N.Y. App. Div. | 1898
This was an action brought for the determination of a claim for real estate-, the -plaintiffs claiming as the heirs at law of William Henry King, deceased, and alleging that the defendant, Eugenia A. .Webster Boss, unjustly claims to own said lands in fee simple absolute. The complaint asked for a judgment that the defendant, might be enjoined from setting up any claim to be the heir at law of William Henry King, and that she and all persons -claiming-under her might, be barred from any claim to said lands, and that the plaintiffs might be adjudged to be the owners thereof in fee simple. The answer, after containing' certain, denials, admitted that-the defendant claimed to- own said lands in fee simple absolute, but denied that she made such claim unjustly, and for relief she asked simply that the Complaint be dismissed. . Hpon that state of the-pleadings the action came on for trial at a Special Term, The defendant appeared, as is stated in the case, solely for the purpose of'demanding a jury trial, and, upon that demand having been denied,, withdrew from further participation in the-trial, which thereupon proceeded without the further presence of anybody representi-ngthe defendant, and resulted in a judgment for the plaintiffs, from, which this appeal is 'taken.
As the defendant appeared at the trial and took part in it, to some-extent, at least, the judgment was not rendered upon a default, and. the defendant is, therefore, entitled to appeal. The only question.
So far as the extra allowance itself is concerned, we can see no reason to interfere with it. It appears that, after the defendant had withdrawn from the case at Special .Term, a trial was had at which testimony was taken, resulting in.a judgment for the plaintiffs. It must be assumed that all necessary facts were made to appear before the court at that trial to warrant it in making every determination which it did make, including the determination as to the amount of an extra allowance.
The defendant also appeals from a subsequent order made at Special Term, denying' the motion to set aside the order granting an extra allowance. The order denying the motion to set aside the allowance was clearly correct. It was simply an effort to obtain from one judge an order overruling the determination of another judge, which was entirely unwarranted. This order must also be affirmed, with costs.
Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.
Judgment and order affirmed, with costs.