82 A.D. 144 | N.Y. App. Div. | 1903
The action was brought to enforce claims against certain real property. ■ After a trial the Special Term directed the entry of an interlocutory judgment in favor of the plaintiff and the defendant Eisert together, with costs and an allowance, and from such interlocutory judgment this appeal is taken.
' Upon the merits we think the judgment right. In reaching this conclusion we have not overlooked the contention which we regard as untenable, that because the defendant Eisert did not answer, the
One criticism, however, with respect to the form of the judgment is, we think, well founded, namely, that it was premature in a suit of this kind to insert costs and an allowance in the interlocutory judgment. These provisions should be eliminated, but without prejudice to an application for the insertion of an allowance together with costs, in the final judgment. The interlocutory judgment should accordingly be modified in the manner indicated, and as so modified affirmed, with costs.
Yan Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Judgment modified as directed in opinion, and as so modified affirmed, with costs. - . .