Ladner v. Rieger, 145 N.Y.S. 673

Ladner v. Rieger

145 N.Y.S. 673 | N.Y. App. Div. | 1914

Laughlin, J.:

The record neither contains the decision to which the notice of appeal refers as having been made on the 3d day of Feb*696ruary, 1913, nor the interlocutory judgment said to have been entered thereon; nor does it contain any order which purports" to set aside that decision. It does contain the interlocutory judgment from which the appeal is taken and the decision on which the same was entered. It also contains an order reciting a decision and interlocutory judgment of February 3, 1913, that the trial justice inadvertently refused to find plaintiff’s fourth proposed finding of fact, which was supported by the evidence, and owing to that error refused to find the second conclusion of law “in its entirety” as proposed by plaintiff, and the third conclusion of law proposed by the plaintiff, both of which conclusions of law were proper, and that the findings and conclusions made at the request of the defendants under date of February 3, 1913, contrary to the findings and conclusions proposed by the plaintiff, were made owing to “a misconception of the pleadings,” and that the proposed findings of fact and conclusions of law submitted by the plaintiff were proper, and that the second and third conclusions of law submitted on behalf of defendants were neither supported by the evidence nor in conformity with the pleadings, and vacating the interlocutory judgment signed on the 3d day of February, 1913.

The action is for an accounting by tenants in common concerning rents, issues and profits alleged to have been received by them for six consecutive specified months commencing with January, 1912. The plaintiff in her complaint failed to allege when the tenancy in common commenced; but according to the evidence, which is in the record and uncontroverted, the plaintiff showed that the tenancy in common commenced on the 19th day of September, 1910, and on findings proposed by the defendants and dated January 21, 1913, the trial court found that the parties have been tenants in common since the 20th day of September, 1910, which is the date the deed to the plaintiff was recorded. It is possible that, by the order to which reference has been made, the trial justice intended to annul this finding, but if so, as has been seen, the order did not accomplish the purpose. Moreover, that is immaterial, since the evidence is uncontroverted as to the time when the parties became tenants in common.

*697The only point to the controversy presented by the appeal is whether the defendants should be required to account for the entire period "the parties have owned the premises in common, or only for the six months specified in the complaint. By the second and third conclusions of law, which were made at the request of the defendants and which it was intended by the order to annul, the court directed an accounting from the commencement of the period of ownership in common, and directed that the defendants be credited with any and all sums of money disbursed or expended by them or either of them in and for the maintenance, care and preservation of the property. We are of opinion that those conclusions of law were proper, and without passing upon the authority of the court on motion to annul them, we are of opinion that on the merits they should not have been annulled. Manifestly an accounting, as between tenants in common, should cover the entire period of the common ownership for which no accounting has been had.

It follows, therefore, that the decision upon which the interlocutory judgment from which the appeal is taken was entered should be modified by inserting, as an additional finding numbered “Eighth,” the third finding of fact as found by the trial justice in the proposed findings of fact and conclusions of law submitted January 27,1913, by the defendants, and by substituting for the conclusions of law the conclusions of law contained in said proposed findings of fact and conclusions of law dated January 27, 1913, submitted by the defendants; and the interlocutory judgment should be modified to conform to the conclusions of law in the decision as thus amended, and as thus modified affirmed, with costs of the appeal to appellants, to be inserted in the final judgment.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment modified as directed in opinion and as modified affirmed, with costs of appeal to appellants. Order to be settled on notice.