103 A.D. 447 | N.Y. App. Div. | 1905
Lead Opinion
The defendants Bowen and Busey appeal from a final judgment entered in this action and in their notice of appeal state that they intend to bring up for review an intermediate order made therein. By that order a motion for a new trial on the ground of surprise, mistake, inadvertence and excusable neglect and for relief for alleged irregularities in the final judgment was denied. The final judgment was made by one justice of the court and the motion was brought on to be heard before another justice. The justice by whom it was heard regarded the application as “ an appeal from one Special Term Judge to another and to substitute the judicial action of'the latter for that of the former, wdiicli may not be done. (Platt v. Ry. Co.,
The appeal from the final judgment raises the question not of its regularity but of the authority of the court, in view of antecedent procedure and of the state of the record, to direct it. The action was brought by McWhirter to impress a trust upon certain real estate purchased by the defendant Bowen on a foreclosure sale
As before remarked, Eisert did not answer the complaint. In deciding the appeal from the interlocutory judgment the court was of opinion that although it was true that in form the plaintiff sued in his own behalf and not for himself and others, nevertheless the complaint sets forth not alone the plaintiff’s rights in the property under the agreement, but also the rights of the defendant Eisert, a party to the agreement. In the prayer for relief the plaintiff demands judgment in Eisert’s favor as well as in his pwn. The
Turning back to the interlocutory judgment thus affirmed, we find no mention made of the interest of Alwin Eisert, except the reference to the §3,500 mortgage. Hor is there any requirement that the referee should state the account of Alwin Eisert or determine what, if any, amount was due him, or what, if any, fractional interest he was entitled to in the premises. Hor is there any direction in the interlocutory judgment that the defendant Bowen upon receiving a deed of the premises should convey any portion thereof to Eisert. Eisert did not appear on the reference nor was there anything shown before the referee concerning the account between the defendant Eisert and the defendant Bowen, very likely for the reason that it was not directed in the interlocutory judgment. It appears in the record that the defendant Eisert had released his claim to or interest in the property or the lien thereon. Certainly if he did execute such a release, no claim could be established by him either by his acting independently or through McWhirter as his trustee. The referee in his report does not con
We cannot find through the whole of the record anything which justifies this final judgment with respect to Eisert. The interlocutory judgment does not provide for an accounting to determine either the amount to be paid to Eisert or to be received by him, nor is there anything in that decree fixing his proportionate interest or determining to what mortgage or mortgages that proportionate interest should be subject.
Construing the interlocutory judgment and taking into consideration the proceedings had thereunder, we are of the opinion that the court had no authority to pass upon and determine what Eisert’s interest, if any, was and that the final judgment should be modified by striking therefrom all that is contained in the final judgment, as it appears in the record, beginning with the words, “ and the said Appellate Division ” at folio 1918 of said record, and ending with the words, “ decision and order ” at folio 1919 of said record, and inserting the word “and” before the word “ judgment” and changing the word “ was ” to “ having been; ” and also by striking therefrom at folio 1930, “ and the defendant Alwin Eisert are respectively,” and inserting instead thereof, “ that the plaintiff William H. McWliirter is entitled ; ” and by striking therefrom at folio 1931 the provision that the defendant Alwin Eisert’s claim is fixed at $21,050; and by striking therefrom at folio 1935 the 7th paragraph ; and by striking out the 9th paragraph as it appears at folio 1939; and by striking from the 10th paragraph of the judgment the provision with respect to Alwin Eisert being entitled, on delivery of a deed, to the free use, enjoyment and possession, conjointly with others, of an undivided interest in the premises.
As thus modified the judgment is affirmed, with costs to the appellant.
Van Brunt, P. J., McLaughlin and Laughlin, JJ., concurred.
Platt v. N. Y. & Sea Beach R. Co.
Concurrence Opinion
I concur with Mr. Justice Patterson. Under the interlocutory judgment, as the plaintiff sued on his own behalf and those similarly situated, any one interested with him in the property could have come in and proved his claim before the referee named therein, and having thus appeared in the action, might have been entitled to take advantage of the interlocutory judgment. The defendant Eisert neither appeared in the action nor did he come in under the interlocutory judgment and present to the referee his claim to an interest in the property; and thus having failed to appear to protect his interest, he ivas not entitled to any relief by the final judgment.
Judgment modified as directed in opinion, and as so modified judgment and order affirmed, with costs to the appellant.