13 N.Y.S. 787 | N.Y. Sup. Ct. | 1891
The question upon the appeal from the order is whether the court should have vacated the judgment which had been entered herein, it appearing that at the time of the entry of the judgment the time to answer of one of the defendants had not expired. It does not seem necessary to discuss at length any such proposition. It is true that upon the trial of the case there had been an adjudication that this defendant was dead; but it would seem that she was very much alive, notwithstanding the adjudication, and that she had appeared in the action, and had been granted leave to answer the complaint, which, time to answer had not expired at the time of the entry of' the judgment. She was a necessary party to the action. She was not in default; and the judgment, therefore, was clearly irregular, and should have been set aside. The order appealed from should be reversed, with $10 costs and disbursements, and the motion to set aside the judgment granted.
As for the appeal from the judgment, a motion having been made to set that aside for irregularity in reference to the additions made thereto, which motion was denied, and upon appeal the order entered thereupon reversed, and the motion granted, it is not necessary to consider the same. The appeal, therefore, from the judgment should be dismissed, without costs. All concur.
