45 N.Y.S. 294 | N.Y. App. Div. | 1897
The judgment was entered in an action wherein one James F. Guilfoyle was plaintiff and one Catherine FI Pierce was defendant. That action was brought to procure the .rescission of a contract and'
The Appellate Division made an order modifying the judgment so as to direct the receiver to convey the property to the appellant instead of the defendant. And this is the direction which the appellant sought to compel the receiver to obey and carry out.
The receiver was willing to obey the order and direction of the court in respect to the property, but the Guilfoyles, by their action, made it so troublesome for him that he desired the further instructions of the court in the premises, and, therefore, this proceeding was commenced, in form, to punish the receiver for contempt, but really to get the direction of the court supplemental to the judgment itself. We think an order containing such direction should have been made at Special Term. The objection that another action had been commenced with respect to this property in -the ñame of Mary L. Guilfoyle, as plaintiff, against Mrs. Pierce, Mr. Guilfoyle and Mr. Lees, the defendant, plaintiff and receiver respectively in the other action, was raised before the Appellate Division, where the order was made amending the judgment, and we then said Mary A. Guilfoyle, the plaintiff’s wife, was not a party in the action in which the judgment had been rendered, and had no right to object to the amendment; that the order could not in any
' They are merely trifling with the court and its judgment and receiver, and should not be encouraged in doing so. They were made parties to this proceeding upon their own application and appeared and opposed the motion, aiid succeeded in procuring the order appealed from to be made. By reason of their, action in the matter they should be required to bear the expense rendered necessary to procure a proper order to be made in the proceeding. The objection to the form or title to the proceeding is merely technical -and formal. The papers bring the whole matter before the court. The mere title to the proceeding, whether entitled in the action or in the form of a special proceeding, is immaterial. It is apparently a special proceeding. . (People ex rel. Negus v. Dwyer, 90 N. Y. 402.) Any informality-in this respect may be, and should be, disregarded.
Patterson, O’Brien, Ingraham and Parker, jJ., concurred.
Order reversed, with ten dollars costs and disbursements to the appellant, to be paid by the Guilfoyles, and order entered as directed in opinion, with ten dollars costs of motion, to be paid by the Guilfoyles to appellant.